BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                         Senator Carole Migden, Chairwoman           S
                             2005-2006 Regular Session               B

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          SB 1128 (Alquist)                                          8
          As Amended March 7, 2006 
          Hearing date:  March 15, 2006
          Government and Penal Codes  (URGENCY)
          JM/AA:br
                                     SEX OFFENDERS  

                                       HISTORY

          Source:  Author

          Prior Legislation: None equivalent to this bill; others on the  
          same general subject are too numerous to list

          Support: Santa Clara County District Attorney's Office; Peace  
                   Officers Research Association (PORAC); Office of the  
                   Attorney General; California Police Chiefs Association;  
                   Community Solutions; California District Attorneys  
                   Association

          Opposition:one individual


                                         KEY ISSUE
           
          SHOULD THE "SEX OFFENDER PUNISHMENT, CONTROL AND CONTAINMENT ACT OF  
          2006" BE ENACTED, AS SPECIFIED?


                                       PURPOSE
          
          The purpose of this bill is to enact the "Sex Offender  
          Punishment, Control and Containment Act of 2006," which  




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          includes the following provisions:  1) creates a new crime for  
          child luring that includes within its scope police sting  
          operations, as specified; 2) creates a new 25 to life crime for  
          specified sex crimes against young children, as specified; 3)  
          creates a new loitering statute prohibiting sex offenders from  
          loitering around school grounds and other places where  
          vulnerable persons congregate, as specified; 4) increases and  
          recasts penalties for child pornography, as specified; 5)  
          states legislative intent to establish child safety programs;  
          6) requires each county to establish a SAFE team, as specified;  
          7) requires recidivism risk assessments for all registered sex  
          offenders, as specified; 8) enhances parole and probation  
          provisions for sex offenders, as specified; 9) extends parole  
          periods for all violent sex offenses; 10) imposes indeterminate  
          terms for sexually violent predators, with minimum  
          constitutional requirements; 11) proposes largely technical  
          sentencing reforms concerning specified sex offenses; 12)  
          requires the Department of Justice to update the Megan's Law  
          database and provide increased information on the Megan's Law  
          Web site; 13) makes changes to sex offender registration  
          provisions, as specified; and 14) enhances the information  
          available on the Megan's Law Web site.
          
           CHILD LURING (Sec. 7)
           
          Existing Law
          
           Existing law  provides that any person who by act or omission  
          persuades, induces, or commands a person under the age of 18  
          years to disobey a lawful order of the juvenile court or causes  
          a minor to remain a delinquent or dependent child is guilty of  
          contributing to the delinquency of a minor.  (Pen. Code  272,  
          subd. (a)(1).)

           Existing law  provides that an adult stranger 21 years of age  
          or older who knowingly contacts or communicates with a minor  
          12 years of age or younger, who knew or should have known that  
          the minor is 12 years of age or younger, for the purpose of  




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          persuading, transporting, or luring the minor away from his or  
          her home or known location, without consent, is guilty of  
          either an infraction or a misdemeanor.  (Pen. Code  272,  
          subd. (b)(1).)

           Existing law  provides that the crime of luring a child from his  
          home does not apply to contact made by a person 1) in an  
          emergency, or 2) in the course and scope of employment, or 3) to  
          contact made by a volunteer for a recognized civic or charitable  
          organization.  (Pen. Code  272, subd. (b)(2) and (4).)

           Existing law  provides that an infraction is not punishable by  
          imprisonment.  (Pen. Code  19.6.)

           Existing law  provides that a person charged with an infraction  
          is not entitled to a trial by jury or a public defender or other  
          counsel appointed to represent him or her at public expense.   
          (Pen. Code  19.6.)

           Existing law  provides that a person who attempts to commit a  
          crime, but who fails to commit the crime or who is prevented  
          from doing so, shall generally receive one-half the sentence  
          normally imposed for the completed crimes.  Certain exceptions  
          apply; the punishment for attempted, premeditated murder is life  
          in prison with the possibility of parole.  (Pen. Code  664.)

           Existing law  provides that a person is guilty of an attempt to  
          commit a crime where he or she specifically intends to commit  
          the crime and takes a direct, but ineffectual, step towards its  
          commission.  (Pen. Code  21a; 1 Witkin & Epstein, Cal. Crim.  
          Law (3d Ed. 2000)  53.)

           Existing law  provides that every person who "annoys or molests"  
          a minor is guilty of a misdemeanor, punishable by up to one year  
          in a county jail, a fine of up to $1,000, or both.  (Pen. Code   
          647.6.)  Decisional law has interpreted this crime to include an  
          element that the perpetrator had an abnormal or unnatural sexual  
          interest in children.  (People v. McFarland (2000) 78  




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          Cal.App.4th 489.)
           
            A person who has been previously convicted of this offense is  
            guilty of a felony.

           A person who committed this crime after entering a residence  
            without consent is guilty of an alternate felony-misdemeanor.

           A person who has been previously convicted of a specified sex  
            crime that involved a victim under the age or 16, or a  
            previous felony conviction under Section 647.6, or a specified  
            prior lewd conduct ( 288) conviction, or a conviction for  
            using a minor under the age of 14 in the production of illegal  
            pornography, is guilty of a felony, punishable by a prison  
            term of 2, 4 or 6 years.
           
           This Bill
           
          This bill  creates a new crime and sentencing scheme concerning  
          persons with an unnatural or abnormal sexual interest in minors  
          who contact minors with the intent to engage in sexual activity.  
           This new crime describes a range of prohibited conduct and sets  
          corresponding penalties.  This new crime is drawn from a  
          long-standing statute (Pen. Code  647.6) that prohibits a  
          person who has an abnormal sexual interest in children from  
          annoying or bothering children.  This crime includes the  
          following provisions:

           A person who, motivated by abnormal or unnatural sexual  
            interest in children, arranges a meeting with a minor, or a  
            person he or she believes to be a minor, for the purpose of  
            engaging in lewd conduct, or exposing his or her genitals,  
            genital area or rectal area, or for having the child do so is  
            guilty of a misdemeanor, punishable by imprisonment in county  
            jail for up to one year, a fine of up to $5000, or both.

           If the person has been previously convicted of this crime, or  
            any offense for which the person must register as a sex  




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            offender, the person is guilty of a felony.

           If the person goes to the arranged meeting place at or about  
            the arranged time, the person is guilty of a felony and shall  
            be punished by imprisonment in a state prison for 2, 3 or 4  
            years, and a fine of up to $10,000.

           This bill  specifically provides that "prosecution under this  
          section shall not prohibit prosecution under any other provision  
          of law."
           
          LOITERING IN AREAS WHERE THERE ARE VULNERABLE POPULATIONS - SEX  
          OFFENDERS (Secs. 35 and 36)

           Current law generally prohibits sex offenders from going into  
          any school building or upon any school ground or adjacent street  
          or sidewalk, unless the person is a parent or guardian of a  
          child attending that school, or is a student at the school or  
          has prior written permission for the entry from the chief  
          administrative officer of that school, if they remain there  
          after being asked to leave, as specified.  (Penal Code  626.8.)

           This bill  would revise this provision to remove from its text  
          the reference to registered sex offenders.

           This bill  would enact a new crime to provide that any registered  
          sex offender who comes into any school building or upon any  
          school ground, without lawful business thereon or written  
          permission from the chief administrative official of that  
          school, or who loiters about any street, sidewalk, or public way  
          adjacent to any school building, school grounds, public  
          playground, or other youth recreational facility where minors  
          are present without lawful business thereon, is guilty of a  
          misdemeanor.   Under this bill  , no request to leave would have to  
          be made for the crime to apply.

           This bill  additionally would provide that any registered sex  
          offender whose victim was an elderly or dependent person, as  




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          specified, who comes onto any property where elderly or  
          dependent persons reside without lawful business thereon or  
          written permission from the director of the facility, is guilty  
          of a misdemeanor.

           This bill  would impose fine and jail time punishments, as  
          specified.

           CHILD SAFETY PROGRAMS (Sec. 57)

           This bill states the legislative intent to create school-based  
          programs to promote child safety and prevent child abductions.

           "SAFE" TEAMS
           
          Current law establishes the "County Sexual Assault Felony  
          Enforcement" Team program, which authorizes any county to  
          "establish and implement a sexual assault felony enforcement  
          (SAFE) team program," as specified.  (Penal Code  13887.)

           Current law  requires that the mission of SAFE "shall be to reduce  
          violent sexual assault offenses in the county through proactive  
          surveillance and arrest of habitual sexual offenders, as defined  
          in Section 667.71, and strict enforcement of registration  
          requirements for sex offenders pursuant to Section 290. . . .   
          The proactive surveillance and arrest authorized by this chapter  
          shall be conducted within the limits of existing statutory and  
          constitutional law."  (Penal Code  13887.1.)

           This bill  would revise this mission to include the following:

                 (c)  The mission of this program shall also be to  
                 provide community education regarding the purposes  
                 of (sex offender registration and Megan's Law).   
                 The goal of community education is to do all of  
                 the following:
                    (1)  Provide information to the public about  
                 ways to protect themselves and families from  




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                 sexual assault.
                    (2)  Emphasis of the importance of using the  
                 knowledge of the presence of registered sex  
                 offenders in the community to enhance public  
                 safety.
                     (3)  To explain that harassment or vigilantism  
                 against registrants may cause them to disappear  
                 and attempt to live without supervision, or to  
                 register as transients, which would defeat the  
                 purpose of sex offender registration.

           Current law  provides that regional SAFE teams may consist of  
          officers and agents from the following law enforcement agencies:

                 Police departments.
                 Sheriff's departments.
                 The Bureau of Investigations of the Office of the  
               District Attorney.
                 County probation departments.  (Penal Code  13887.2.)

           Current law  provides that, in addition, to "the extent that  
          these agencies have available resources, the following law  
          enforcement agencies:

               (1)  The Bureau of Investigations of the California  
          Department of Justice.
               (2)  The California Highway Patrol.
               (3)  The State Department of Corrections.
               (4)  The Federal Bureau of Investigation."  (Penal Code   
          13887.2(e).)

           Current law  states the following objectives for this program:

           To identify, monitor, arrest, and assist in the prosecution of  
            habitual sexual offenders who violate the terms and conditions  
            of their probation or parole, who fail to comply with the  
            registration requirements of Section 290, or who commit new  
            sexual assault offenses.




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           To collect data to determine if the proactive law enforcement  
            procedures adopted by the program are effective in reducing  
            violent sexual assault offenses.

           To develop procedures for operating a multijurisdictional  
            regional task force.  (Penal Code  13887.3.)

           Current law  provides that "[n]othing in this chapter shall be  
          construed to authorize the otherwise unlawful violation of any  
          person's rights under the law."  (Penal Code  13887.4.)

           This bill  would require every county to establish a SAFE team.

           THE SEXUALLY VIOLENT PREDATOR ("SVP") CIVIL COMMITMENT LAW
          (Secs. 53; 61 et seq.)
           
          Basic Governing Provisions and Definitions in SVP Law

          Existing Law - Background
          
           Existing law  includes basic constitutional principles applicable  
          to involuntary civil commitment.  As described in In re Howard  
          N. (2005) 35 Cal.4th 117, 127-128:  "The high [United States  
          Supreme] court has repeatedly recognized that civil commitment  
          for any purpose constitutes a significant deprivation of liberty  
          that requires due process protection.  Moreover, it is  
          indisputable that involuntary commitment to a [psychiatric]  
          hospital after a finding of probable dangerousness . . . can  
          engender adverse social consequences to the individual."  (Ibid,  
          quoting Addington v. Texas (197) 441 U.S. 418, 425.)

           Under current law  , the Sexually Violent Predator (SVP) law,  
          provides for the civil commitment for psychiatric treatment of a  
          prison inmate found to be a sexually violent predator after the  
          person has served his or her prison commitment.  (Welf. & Inst.  
          Code  6600, et seq.)





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          SVP Commitment Standards, Definitions and Related Provisions
          
          Existing Law
          
           Existing law  defines a sexually violent predator as an inmate  
          "who has been convicted of a sexually violent offense against  
          two or more victims and who has a diagnosed mental disorder that  
          makes the person a danger to the health and safety of others in  
          that it is likely that he or she will engage in sexually violent  
          criminal behavior."  (Welf. & Inst. Code  6600, subd. (a).)

           Existing law  defines a "sexually violent offense" as one of the  
          following crimes when committed by force, violence, duress,  
          menace, or fear of immediate and unlawful bodily injury on the  
          victim or another person.  (Welf. & Inst. Code  6600, subd.  
          (a).):

                 Rape or spousal rape.  (Pen. Code  261, subd. (a)(2),  
               262, subd. (a)(1).)
                 Rape or sexual penetration in concert.  (Pen. Code   
               264.1.)
                 Lewd conduct.  (Pen. Code  288 subds. (a) or (b).)
                 Sexual penetration.  (Pen. Code  289, subd. (a).)
                 Sodomy.  (Pen. Code  286.)
                 Oral Copulation.  (Pen. Code  288a.)

           Existing law  also describes a sexually violent offense as any  
          crime against a child under 14 years of age that involved  
          substantial sexual conduct, which is further defined as  
          penetration of the vagina or rectum, oral copulation, or  
          masturbation by the perpetrator or victim.  (Welf. & Inst. Code  
           6600.1.)

           Existing law  provides that the details of a prior qualifying  
          conviction - most importantly used to establish that an offense  
          was committed by force or duress - can be proved by documentary  
          evidence, including preliminary hearing transcripts, trial  
          transcripts, probation and sentencing reports, and Department of  




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          Mental Health ("DMH") evaluations.  (Welf. & Inst. Code  6600,  
          subd. (a)(3).)

           Existing law  provides that a qualifying conviction for a  
          sexually violent offense must also fit in one of the following  
          categories:

                 A conviction that resulted in a determinate prison term;
                 A conviction prior to July 1, 1977, that resulted in an  
               indeterminate prison term;
           A conviction from another jurisdiction that includes all the  
            elements of a qualifying sexually violent offense under  
            California law;
           A conviction under a predecessor statute that includes all the  
            elements of a sexually violent offense;
           A prior conviction for a sexually violent offense for which  
            the defendant received a grant of probation;
           A prior finding of not guilty by reason of insanity for a  
            sexually violent offense; or
           A conviction resulting in a finding that the person was a  
            mentally disordered sex offender.
           
          Existing law  defines a "diagnosed mental disorder" as one that  
          includes "a congenital or acquired condition affecting the  
          emotional or volitional capacity that predisposes the person to  
          the commission of criminal sexual acts in a degree constituting  
          the person a menace to the health and safety of others."  (Welf.  
          & Inst. Code  6600, subd. (c).)

           Existing law  defines predatory sexual acts as those committed  
          against a stranger, casual acquaintance who has no substantial  
          relationship with the perpetrator, or a person with whom the  
          alleged SVP established a relationship for purposes of  
          victimization.  (Welf. & Inst. Code  6600, subd. (e).)

           Existing law  does not require that a defendant's prior  
          qualifying convictions be predatory.  (People v. Torres (2001)  
          25 Cal.4th 680.)  Only a defendant's likely future predatory  




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          sexual behavior need be established.  (People v. Hurtado (2002)  
          28 Cal.4th 1179.)




           Existing law  implements the SVP law as outlined below:

           The SVP law applies to an inmate serving a state prison term  
            or a parole revocation term.
           The law requires evaluation by two specified mental health  
            professionals according to protocols established by DMH.
           The evaluation must be done at least six months prior to  
            release from custody, unless the Department of Corrections  
            received the inmate with less than nine months to serve, or  
            court or administrative action modified the inmate's sentence.
           DMH then requests the prosecutor from the county of commitment  
            to file a petition for involuntary civil commitment and the  
            superior court determines probable cause that the inmate is an  
            SVP.
           If the court finds probable cause, a formal trial upon proof  
            beyond a reasonable doubt is held.
           If the state prevails, the SVP is committed to DMH for two  
            years of treatment, with additional two-year commitments upon  
            successful new petition proceeding.  (Welf. & Inst. Code   
            6601.)

           Existing law  provides that the evaluators must agree that the  
          inmate meets the statutory criteria for commitment before the  
          case can be submitted to the district attorney for filing.  If  
          the evaluators disagree, additional, independent evaluators are  
          appointed.  The second pair of evaluators must agree that the  
          person meets the requirement for SVP commitment or the case  
          cannot proceed.  (Welf. & Inst. Code  6601, subds. (c)-(e).)
          
          This Bill

           This bill  provides that a sexually violent offense includes  




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          kidnapping (as defined under Penal Code  207 or  209) with the  
          intent to commit one of a list of specified sex crimes.
           
          This bill  adds assault with intent to commit a sex crime (Pen.  
          Code  220 - essentially a combination of an attempted sex crime  
          and an assault) as a qualifying prior SVP crime.  
          
          This bill  changes and expands the definitions and descriptions  
          of qualifying prior convictions so as to define such crimes  
          generically in terms of how the crime was committed - by force,  
          fear or duress, including threats of future retaliation -  
          instead of by particular crime sections and subdivisions.  For  
          example, if an oral copulation was prosecuted only under a  
          section defined in terms of the age difference between the  
          perpetrator and the victim but the crime also involved force or  
          fear, this would constitute a qualifying SVP crime under this  
          bill, when it likely would not so qualify under existing law.






          Review of SVP Status, Conditional Release under Treatment and  
          Unconditional Release

          Existing Law
          
           Existing law  provides that a person committed to the custody of  
          DMH as an SVP shall have a current examination of his or her  
          mental condition made at least once every year.  (Welf. & Inst.  
          Code  6605, subd. (a).)

           Existing law  provides that unless the person waives the right to  
          petition for conditional release to a community treatment  
          program (Welf. & Inst. Code  6608), the superior court annually  
          must conduct a "show cause hearing" to determine whether  
                                 "probable cause exists to believe that the committed person's  




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          diagnosed mental disorder has so changed that he or she is not a  
          danger to the health and safety of others and is not likely to  
          engage in sexually violent criminal behavior if discharged."   
          (Welf. & Inst. Code  6605, subd. (c).)

           Existing law  provides that if the court finds probable cause in  
          the annual review that the SVP patient no longer presents a danger  
          of committing sexually violent offenses, the court shall order a  
          trial to determine if the patient should be discharged.  At trial,  
          the state has the burden to prove beyond a reasonable doubt that  
          the patient is dangerous.  (Welf. & Inst. Code  6605, subds.  
          (c)-(d).)

           Existing law  provides that if the Director of DMH finds that the  
          mental disorder of a person committed as an SPV has changed such  
          that the person is not likely to commit acts of predatory sexual  
          violence while in the community, the director shall recommend  
          conditional release of the person.  The recommendation shall be  
          given to the committing court, the (prosecuting) county attorney  
          and the person's attorney.  The court shall then set a hearing  
          on the matter.  (Welf. & Inst. Code  6607.)
          
           This Bill
           
          This bill  , in its provisions concerning annual review of SVP  
          status, the show cause hearing, probable cause findings and the  
          resulting trial based on a probable cause finding, is drawn from  
          the Washington State processes.  (See Comment 3, infra.)  

          This bill  provides that the annual examination and report of the  
          mental status of an SVP patient shall consider whether or not  
          the patient currently meets the definition of an SVP, and  
          whether or not the patient can be conditionally released with  
          supervision, or unconditionally released.
           
          This bill  provides that DMH, in the form of a declaration, shall  
          report to the court as to results of the annual examination.
           




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          This bill  provides that if DMH determines that an SVP patient no  
          longer meets the statutory definition of an SVP, or that the  
          patient can be safely released conditionally, DMH shall  
          authorize the person to petition for conditional release or  
          unconditional discharge.

           This bill  provides that at the time of the issuance of the  
          annual report, the SVP patient shall be informed of his or her  
          right to petition for conditional or unconditional release at a  
          trial.

           This bill  provides that a trial shall be ordered where the  
          defendant establishes probable cause to believe that he or she  
          is no longer an SVP, or that he or she can be safely  
          conditionally released under supervision.

           This bill  provides that, if the patient does not affirmatively  
          waive the right to petition for conditional or unconditional  
          release, the court shall set a show-cause hearing to determine  
          whether there is probable cause that 1) the patient can be  
          safely conditionally released under supervision, and 2) whether  
          the patient no longer is an SVP.

           This bill  provides that the court at the show-cause hearing  
          shall consider documentary evidence.

           This bill  provides that the SVP patient may be represented by  
          counsel at the show-cause hearing, but the patient does not have  
          a right to be present.

           This bill  provides that at the show-cause hearing, the state  
          shall present prima facie evidence 1) that the person  
          continues to meet the definition of an SVP, and 2) that the  
          person cannot be safely released into the community under  
          supervision.

           This bill  provides that in presenting prima facie evidence the  
          state can rely on the annual report.




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           This bill  provides that the person can present responsive  
          declarations and affidavits to which the state can reply.

           This bill  provides that the court shall set a trial if the court  
          finds either 1) the state failed to present a prima facie case  
          that the person continues to be an SVP or that he cannot be  
          safely released under supervision, or 2) that probable cause  
          exists that the person no longer fits the definition of an SVP  
          or that the person can be safely released into the community  
          under supervision.   This bill  requires the court to set a trial  
          on either or both issues, depending on the results of the  
          show-cause hearing.

           This bill  provides that, at the show-cause hearing, if the court  
          has not previously considered the issue of whether or not the  
          person can be safely released into the community under  
          supervision, the court shall consider this issue.

           This bill  provides that if the court orders a trial, the state  
          shall have the burden to prove beyond a reasonable doubt that 1)  
          the person continues to meet the definition of an SVP, or 2) the  
          person can be safely released into a less restrictive  
          alternative in the community under supervision.  In setting the  
          trial, the court shall frame the issues to be determined in the  
          trial.

           This bill  , as particularly concerns a trial on conditional  
          release, provides that the state has the burden to prove that  
          either conditional release is either 1) not in the best  
          interests of the person, or 2) any less restrictive alternative  
          and conditional release would not include conditions that would  
          adequately protect the community.

           This bill provides that either the state or the person can  
          demand a jury trial if, pursuant to the show-cause requirements  
          described above, a trial is ordered.





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           This bill  provides that the person shall be entitled to all the  
          constitutional protections available at the original commitment  
          trial.


           This bill  provides that a new trial on the status of an SVP can  
          only be ordered if the probable cause includes evidence from a  
          licensed professional of the following:


                 Physiological changes, such as paralysis, stroke, et  
               cetera, that renders a person permanently unable to commit  
               a sexually violent act; or


                 Changes in mental condition brought about by positive  
               response to treatment that renders the person safe for  
               conditional or unconditional release.

           
          This bill  provides that a change in a single "demographic"  
          factor - age, marital status, gender - does not constitute a  
          change justifying probable cause.

           This bill  provides that jurisdiction of the court over a  
          conditionally released person continues until the person is  
          unconditionally discharged.

           This bill  provides that the court must find all of the following  
          before ordering conditional release:

           The person will be treated by a qualified treatment provider;
           The treatment provider has presented a specific course of  
            treatment, has agreed to assume responsibility for treatment  
            and will regularly report to the court, the prosecutor, and  
            DMH;
           Housing exists that is sufficiently secure to protect the  
            community, and the person or agency providing housing has  




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            agreed to accept the person and provide the necessary level of  
            security;
           The agency or person providing housing must agree to provide  
            notice that the person has left his residence;
           The released person agrees to comply with the conditions  
            imposed by the court and to comply with the treatment  
            provider; and
           The person shall comply with supervision of DMH or CDCR.


           This bill  provides that at the close of evidence at the trial,  
          or through summary judgment proceedings at the show-cause  
          hearing, if the court finds that that there is no legally  
          sufficient basis to present the issues of release to a jury, the  
          court shall grant a motion by the state on the issue of  
          conditional release as a matter of law.

           This bill  provides that the court, in ordering conditional  
          release, shall impose all conditions necessary to ensure the  
          safety of the community and compliance with the treatment  
          program.

           This bill  provides that if the person cannot be released such  
          that compliance with conditions of release cannot be met and  
          community safety assured, the person shall be remanded to the  
          custody of the secure treatment facility in DMH.

           This bill  provides that any person or entity designated to  
          provide treatment or other services shall agree in writing to  
          provide treatment, monitoring and supervision under the SVP  
          release statutes.

           This bill  provides that a person providing services, treatment  
          or monitoring may be compelled to testify and all evidentiary  
          privileges waived.

           This bill  provides that the court shall review the case of a  
          conditionally released person each year at a minimum.   This bill   




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          provides that the sole issue to be considered at the review  
          shall be whether or not the person shall remain on conditional  
          release.

           This bill  provides that DMH shall provide a recommendation to  
          the court before the court places a person in a conditional  
          release program.

          SVP Parole Provisions (and Related General Parole Rules)
          
          Existing Law
          
           Existing law  generally provides that inmates serving a  
          determinate term of imprisonment shall be released on parole for  
          a period of three years.  Specified sex offenders - those  
          released after serving a determinate term of imprisonment and  
          specified in this bill - shall be released on parole for a  
          period of five years.  Specified sex offenders - those released  
          by the Board of Prison Terms following an indeterminate term of  
          imprisonment and specified in this bill - shall be released on  
          parole for a period of five years subject to an additional  
          five-year period of parole, as specified.  (Pen. Code  3000,  
          subd. (b)(1) and (3).)

           Existing law  provides that a finding that a person is an SVP  
          "shall not toll, discharge or otherwise affect that person's  
          period of parole."  (Pen. Code  3000, subd. (a)(4).)




          This Bill
          
           This bill  tolls parole for any person evaluated as a possible  
          SVP or committed to the SVP program.  Parole tolling under this  
          bill applies during the following periods:

           Evaluation of the person by experts and through the probable  




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            cause hearing;
           During the commitment trial process following a finding or  
            probable cause; and
           During commitment to the SPV program.

           This bill  provides that the period of parole includes the period  
          of conditional release in the community under supervision.
           
          CHILD PORNOGRAPHY AND RELATED STATUTES (Secs. 21-34)

           Existing Law
           
           Existing law provides that any person who "hires, employs, or  
          uses" a minor to assist in committing any of the acts described  
          in Penal Code Section 311.2 (see next paragraph) is guilty of a  
          misdemeanor.  If the person has a prior conviction, he or she is  
          guilty of a misdemeanor, but the court may impose a fine of up  
          to $50,000, and may sentence the defendant pursuant to Penal  
          Code Section 311.9, which allows felony punishment for repeated  
          convictions of child pornography related crimes.  (Pen. Code   
          311.4, subd. (a).)

           Existing law  , as set out in four subdivisions in Penal Code  
          Section 311.2, defines various crimes related to the  
          distribution or sale of obscene matter and matter involving  
          minors engaged in sexual conduct:

                 Possessing or importing into California any obscene  
               matter for sale or distribution without commercial  
               purposes:  misdemeanor for first conviction, felony and  
               increased fines for subsequent convictions.

                 Possessing, importing, etc., for commercial sale or  
               distribution any obscene matter that includes depictions  
               (whether obscene or not) of minors engaging in actual or  
               simulated sexual conduct:  felony, with 2, 3, or 6 year  
               terms and $100,000 fine.





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                 Possessing, importing, etc., for sale or distribution to  
               adults, without commercial purpose, any matter that depicts  
               minors engaged in actual or simulated sexual conduct:   
               misdemeanor, and apparently a felony for second conviction,  
               pursuant to Section 311.9.

                 Possessing of importing, etc., for distribution to  
               minors any matter that depicts minors engaged in actual or  
               simulated sexual conduct:  felony, with penalty 16 months,  
               2 years or 3 years in prison.  Commercial consideration is  
               not required.

           Existing law  provides that any person who hires or uses a minor  
          to model or pose, or uses a minor to assist in modeling or  
          posing that involves depictions of minors engaged in sexual  
          activity for commercial purposes is guilty of a felony,  
          punishable by imprisonment in the state prison for 3, 6, or 8  
          years.  (Pen. Code  311.4, subd. (b).)

           Existing law  provides that any person who hires or uses a minor  
          to model or pose, or uses a minor to assist in modeling or  
          posing that involves depictions of minors engaged in sexual  
          activity for other than commercial purposes, is guilty of a  
          felony, punishable by imprisonment in the state prison for 16  
          months, 2 years or 3 years.  (Pen. Code  311.4, subd. (c).)

           Existing law  provides that with regard to any obscene matter  
          depicting a person under the age of 18 engaged in actual or  
          simulated "sexual conduct," any person who sends, imports,  
          produces or duplicates such material, with the intent to  
          distribute the material, or who offers to do so, is guilty of an  
          alternate felony-misdemeanor, punishable by up to 1 year in  
          county jail, a fine up to $1000, or both, or imprisonment in  
          state prison for 16 months, 2 years, or 3 years, and a fine of  
          up to $10,000.  Exceptions apply to law enforcement  
          investigations, legitimate scientific/educational activities, or  
          the lawful acts of married minors.  (Pen. Code  311.1.)





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           Existing law  provides that a person who violates Section 311.5  
          (promotional material involving obscenity) or Section 311.2  
          (distribution or sale of obscene material or child pornography),  
          except subdivision (b) of Section 311.2 (commercial distribution  
          of obscene matter depicting minors), is a misdemeanor punishable  
          by a fine of not more than $1000 plus $5 for each additional  
          unit of prohibited material, not to exceed $10,000, or by  
          imprisonment in the county jail for not more than six months  
          plus one day for each additional unit of prohibited material,  
          not to exceed 360 days in the county jail, or by both such fine  
          and imprisonment.  If such person has previously been convicted  
          of any offense in this chapter, or of a violation of Section  
          313.1, a violation of Section 311.2 or 311.5, except subdivision  
          (b) of Section 311.2, is punishable as a felony.  (Pen. Code   
          311.9, subd. (a).)

           Existing law  provides that a person who violates Section 311.4  
          (use of a minor in the production or distribution of illegal  
          pornography) is punishable by a fine of not more than $2000 or  
          by imprisonment in the county jail for not more than one year,  
          or both.  If the person has been previously convicted of a  
          violation of Section 311.4, he or she is guilty of a felony,  
          punishable by imprisonment in the state prison.  (Pen. Code   
          311.9, subd. (b).)

           Existing law  provides that a person who violates Section 311.7  
          (conditioning book, newspaper, et cetera, distribution or  
          franchise on acceptance of obscene material) is guilty of a  
          misdemeanor, punishable by a fine of not more than $1000 or  
          imprisonment in the county jail for not more than 6 months, or  
          both.  For a second and subsequent offense the defendant shall  
          be punished by a fine of not more than $2000, or by imprisonment  
          in the county jail for not more than one year, or both.  If such  
          person has been twice convicted of a violation of crimes  
          involving illegal sexual material, a violation of Section 311.7  
          is punishable as a felony.  (Pen. Code  311.9, subd. (c).)

           Existing law  provides that Penal Code Section 311.11 (possession  




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          of depictions of minors engaged in actual or simulated sexual  
          conduct) does not apply to "drawings, figurines, statutes, or  
          any film rated by the Motion Picture Association of America  
          [MPAA]."  Such ratings include G, PG, PG-13, R and NC-17, but  
          not XXX or the like).  (Pen. Code  311.11, subd. (d).)

           Existing law  defines "sexual conduct," whether actual or  
          simulated, as the following:  masturbation, sexual intercourse,  
          oral copulation, anal intercourse, bestiality, sexual sadism,  
          lewd or lascivious penetration of the vagina or rectum by any  
          object, exhibition of the genital, pubic or rectal areas for  
          purposes of sexual stimulation of the viewer, and lewdly  
          performed excretory functions.  (Pen. Code  311.4.)

           Existing law  provides that "an act is simulated when it gives  
          the appearance of being sexual conduct."  (Pen. Code  311.4.)

           Existing law  provides that any person who sends "harmful matter"  
          (obscenity from the perspective of minors) to a minor to seduce  
          or arouse is guilty of an alternate misdemeanor-felony,  
          punishable by one year in county jail or 16 months, 2 or 3 years  
          in state prison for the first offense and a felony for a second  
          or subsequent offense.  (Pen. Code  288.2.)

           Existing law provides that a person who possesses or controls  
          matter depicting a person under the age of 18 engaged in actual  
          or simulated "sexual conduct" is guilty of a misdemeanor,  
          punishable by imprisonment in the county jail for up to one  
          year, a fine not exceeding $2500, or both.  The subject material  
          need not be obscene under this section.  (Pen. Code  311.11.)

           Existing law  , as interpreted by relevant appellate  
          decisions, provides that Penal Code Section 311.11 "requires  
          a real minor and also requires knowledge of minority on the  
          part of the perpetrator."  (People v. Kurey (2001) 88  
          Cal.App.4th 840, 847.)

           Existing law  provides that if a person convicted of simple  




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          possession of child pornography (Pen. Code  311.11, subd. (a))  
          has a prior conviction for possession of matter that depicts  
          minors engaged in actual or simulated sexual conduct (Pen. Code  
           311.11), or a conviction for either commercial distribution of  
          sexual material depicting minors (Pen. Code  311.2, subd. (b)),  
          or use of a minor in making such material for commerce (Pen.  
          Code  311.4, subd. (b)) he or she is guilty of a felony and  
          subject to imprisonment in the state prison for 2, 4, or 6 years  
          and a fine of up to $10,000.  (Pen. Code  311.11, subd. (b).)

           Existing law  provides that any person who hires or uses a minor  
          to model or pose, or uses a minor to assist in modeling or  
          posing that involves depictions of minors engaged in sexual  
          activity for commercial purposes is guilty of a felony,  
          punishable by imprisonment in the state prison for 3, 6, or 8  
          years.  (Pen. Code  311.4, subd. (b).)


           Existing law  provides that any person who hires or uses a minor  
          to model or pose, or uses a minor to assist in modeling or  
          posing that involves depictions of minors engaged in sexual  
          activity for other than commercial purposes, is guilty of a  
          felony, punishable by imprisonment in the state prison for 16  
          months, 2 or 3 years.  (Pen. Code  311.4, subd. (c).)

          This Bill
          
           This bill  increases the penalties for hiring or using a minor to  
          model or pose, or using a minor to assist in modeling or posing,  
          in depictions of minors engaged in sexual  activity for other  
          than commercial purposes, from 6 months, 2 or 3 years in prison,  
          to 2, 3 or 4 years in prison.

           This bill  reorganizes the obscenity and child pornography law.   
          The bill makes the following organizational changes:

           Eliminates redundant definitions of the forms of "matter" that  
            can be or are prohibited under the obscenity and child  




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            pornography law;
           Specifies that child pornography - which need not be obscene -  
            must be in a visual form;
           Places the major provisions concerning possession of child  
            pornography and distribution of such material in adjoining  
            sections and subdivisions; and
           Places the provisions concerning distribution or exchange of  
            obscene material, and offering or intending to distribute or  
            exchange such material, in a single section.

           This bill  increases the penalties for possession and for  
          distribution or exchange of child pornography, and the penalties  
          for offering or intending to distribute or exchange child  
          pornography, as follows<1>:

           Possession of Child Pornography (first-time convictions)
                                               
                 The matter depicts a child under 16 engaged in explicit  
               sexual conduct<2>:
               felony, with a penalty of 16 months, 2 years or 3 years in  
          prison.

                 The matter depicts a minor who is 16 or 17 years old  
               engaged in explicit sexual conduct:
               alternate felony-misdemeanor.
               -------------------------
          <1>  See Comment 11, infra, for a chart depicting these proposed  
          sentencing changes and current law.
          <2>  For purposes of these provisions, "explicit sexual conduct"  
          "means any of the following, whether actual or simulated:   
          sexual intercourse, oral copulation, anal intercourse, anal oral  
          copulation, masturbation on bare skin, bestiality, sexual  
          sadism, sexual masochism, penetration of the vagina or rectum by  
          any object in a lewd or lascivious manner, graphic and explicit  
          display of the genitals or pubic or rectal area of an overtly  
          sexual character, or excretory functions performed in a lewd or  
          lascivious manner, whether or not any of the above conduct is  
          performed alone or between members of the same or opposite sex  
          or between humans and animals."



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                 The matter depicts sexual conduct<3> not explicit that  
               depicts a minor under the age of 16:
               alternate felony-misdemeanor.

                 The matter depicts sexual conduct not explicit that  
               depicts a minor who is 16 or 17 years:
               misdemeanor.

           Possession of Child Pornography with the Intent to Distribute  
            or Exchange, or Offering to Distribute or Exchange
          
                 The matter depicts a child under 16 engaged in explicit  
               sexual conduct:
               felony, with a penalty of 2, 3, or 4 years in prison.

                 The matter depicts a minor who is 16 or 17 years old  
               engaged in explicit sexual conduct:
               felony.

                 The matter depicts sexual conduct not explicit that  
               depicts a minor under the age of 16:
             --------------------------
          <3>  "Sexual conduct" under these provisions "means any of the  
          following, whether actual or simulated:  sexual intercourse,  
          oral copulation, anal intercourse, anal oral copulation,  
          masturbation, bestiality, sexual sadism, sexual masochism,  
          penetration of the vagina or rectum by any object in a lewd or  
          lascivious manner, exhibition of the genitals or pubic or rectal  
          area for the purpose of sexual stimulation of the viewer, any  
          lewd or lascivious sexual act as defined in Section 288, or  
          excretory functions performed in a lewd or lascivious manner,  
          whether or not any of the above conduct is performed alone or  
          between members of the same or opposite sex or between humans  
          and animals.  An act is simulated when it gives the appearance  
          of being sexual conduct."




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               felony.

                 The matter depicts sexual conduct not explicit that  
               depicts a minor who is 16 or 17 years:
               alternate felony-misdemeanor.

                 Where the person distributing child pornography is a  
               registered sex offender, the crime is a felony, punishable  
               by a term of 3, 6 or 8 years in prison.
           
          This bill  provides that where a person has been previously  
          convicted of any registerable sex crime, possession of child  
          pornography is a felony, with a prison term of 2, 4 or 6 years.

          Statute of Limitations - Child Pornography

           Current law  generally provides for a six year statute of  
          limitations for pornography offense.  (Penal Code  800)

           This bill  would extend that period to within 10 years of the  
          date of production of the pornographic material.


          Asset Forfeiture
          
          Existing law  includes various provisions for the forfeiture of  
          profits made from illicit activity, including specified child  
          pornography and exploitation crimes.  (Health & Saf. Code   
          11469; Pen. Code  186.2.)

           Existing law  provides that the child pornography and exploitation  
          forfeiture, as part of the scheme for criminal asset forfeiture  
          in organized crime prosecutions, shall be done in conjunction  
          with the criminal trial and is limited to criminal discovery  
          rules.  (Pen. Code  186.2-186.8.)

           This bill  provides broadly that the profits or proceeds of any  
          production, sale, et cetera of child pornography shall be  




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          subject to forfeiture.  The forfeiture proceedings shall be  
          conducted under the rules of civil discovery.

           RISK ASSESSMENT FOR SEX OFFENDERS (Secs. 13-19; 48; 49; 54; 55)

           Current law provides that the "Department of Corrections, to the  
          maximum extent practicable and feasible, and subject to  
          legislative appropriation of necessary funds, shall ensure, by  
          July 1, 2001, that all parolees under active supervision and  
          deemed to pose a high risk to the public of committing violent  
          sex crimes shall be placed on an intensive and specialized  
          parole supervision caseload."  (Penal Code  3005; emphasis  
          added.)

           Existing law  states the legislative finding that "continuous  
          electronic monitoring has proven to be an effective risk  
          management tool for supervising high-risk persons on probation  
          who are likely to reoffend where prevention and knowledge of  
          their whereabouts is a high priority for maintaining public  
          safety."  (Penal Code  1210.7.)

           Current law  provides that an inmate who is released on parole  
          for a violation of Section 288 or 288.5 whom the Department of  
          Corrections and Rehabilitation determines poses a high risk to  
          the public shall not be placed or reside, for the duration of  
          his or her parole, within one-half mile of any public or private  
          school including any or all of kindergarten and grades 1 to 12,  
          inclusive.  (Penal Code  3003.)

          Mandated Risk Assessment for All Adult Male Registered Sex  
          Offenders; STATIC-99
          
           This bill  would require that, commencing on January 1, 2007, all  
          adult males who are required to register as sex offenders shall  
          be subject to assessment by the STATIC-99 assessment tool.   This  
          bill  would provide that the STATIC-99 and its successor  
          instruments shall be the sole actuarial risk assessment  
          instrument used for registered sex offenders.




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           This bill  would provide that, commencing on January 1, 2007, the  
          actuarial risk assessment instrument for adult males required to  
          register as sex offenders shall be the STATIC-99.

           This bill  would provide that there shall be four risk assessment  
          tier levels assignable to registered sex offenders under this  
          instrument:  low, moderate-low, moderate-high, and high.

           This bill  would provide that CDCR, in consultation with the  
          Attorney General and local law enforcement, shall establish and  
          implement a schedule for conducting, no later than January 1,  
          2012, STATIC-99 assessments of adult male registered sex  
          offenders living in California who no longer are in custody, on  
          probation, or on parole as of the effective date of this  
          section.

           This bill  would require that these persons be administered a  
          STATIC-99 assessment according to the implementation schedule  
          during their annual registration update by persons authorized to  
          administer the instrument.   This bill  would require that the  
          schedule adopted by DOJ shall give priority to assessing those  
          registrants with the most recent sex offense convictions.

           This bill  would provide that any adult male required to register  
          as a sex offender may seek an assessment before their scheduled  
          assessment period at his or her own cost as determined by the  
          department.

          Mandated Periodic Review and Update of Risk Assessment  
          Instrument
          
           This bill  would require that on or before January 1, 2010, CDCR,  
          in consultation with DMH and experts in sex offender risk  
          assessment and the use of actuarial instruments in predicting  
          sex offender risk, to periodically evaluate and update the  
          STATIC-99 or its successor instrument to ensure that  
          California's standardized actuarial assessment instrument for  




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          assessing sex offender risk reflects reliable, objective and  
          well-established protocols for predicting sex offender risk of  
          recidivism, has been scientifically validated with multiple  
          cross-validations, and is widely accepted by the courts.

          Female and Juvenile Offenders - Identification of Appropriate  
          Actuarial Risk Assessment Instruments
          
           This bill  would require, on or before January 1, 2008, CDCR, in  
          consultation with the Department of Mental Health and experts in  
          sex offender risk assessment and the use of actuarial  
          instruments in predicting sex offender risk, to research  
          actuarial risk assessment tools for female and juvenile  
          registered sex offenders, and to make recommendations to the  
          Governor and to the Legislature concerning the appropriate  
          actuarial risk assessment instrument to be used to assess those  
          populations.

          Training of Persons to Perform Assessments
          
           This bill  would require, on or before January 1, 2008, CDCR, in  
          consultation with DMH, and experts in sex offender risk  
          assessment and the use of actuarial instruments in predicting  
          sex offender risk, to establish a training program for probation  
          officers, parole officers, and any other persons authorized by  
          law to perform risk assessment.  CDCR would be required under  
          this bill to use an expert in the field of risk assessment and  
          the use of actuarial instruments in predicting sex offender risk  
          to conduct periodic training.

           This bill  would require probation departments and regional  
          parole officers to designate persons within their organizations  
          to attend a yearly training and shall train others within their  
          organizations who are designated to perform risk assessments as  
          required or authorized by law.

           This bill  would require probation officers who conduct sex  
          offender risk assessments to be trained in an approved program  




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          as specified, and to receive updated training no less frequently  
          than every two years, as determined by CDCR.

          Risk Assessments at Presentencing, with Results Noted in  
          Presentencing or Probation Officer's Report

           This bill  would require probation officers trained in the use of  
          STATIC-99 to perform a presentencing risk assessment of every  
          adult male convicted of an offense that requires him to register  
          as a sex offender.

           This bill  would require probation officers to assign a risk  
          assessment tier level score to the assessment, and to include  
          that score in a presentencing or probation officer's report.

          Facts of Offense Sheet
          
          This bill would require probation officers to compile a Facts of  
          Offense Sheet for every adult male convicted of an offense that  
          requires him to register as a sex offender containing the  
          following information concerning the offender and his offense:
                     name;
                     all known aliases;
                     CII number;
                     physical description;
                     criminal history, including registerable sex  
                 offenses, other offenses, and arrests that did not result  
                 in conviction for sexual or violent offenses;
                     unique circumstances of the offense for which  
                 registration is required, including but not limited to,  
                 weapons used or victim pattern;
                     risk assessment tier level; and
                     type of victims targeted in the past.

           This bill  would provide that the defendant may move the court to  
          correct the Facts of the Offense Sheet, and additionally provide  
          that any corrections to the Facts of the Offense Sheet offered  
          by the defendant shall be made consistent with Section 1204 of  




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          the Penal Code.

           This bill  would require the Facts of Offense Sheet to be  
          included in the probation officer's report, and to also be  
          forwarded to the incarcerating agency, if any.

          In addition,  this bill  would require that a copy of the Facts of  
          Offense Sheet be sent by the probation department to the  
          registering law enforcement agency in the jurisdiction where the  
          person will reside on supervised probation within three days of  
          the person's release on probation.  Probation also would be  
          required to send a copy of the Facts of Offense Sheet to the  
          Department of Justice Sex Offender Tracking Program within three  
          days of the person's sex offense conviction, and would require  
          that it be made part of the registered sex offender's file  
          maintained by the Sex Offender Tracking Program.   This bill   
          would provide that the Facts of Offense Sheet shall thereafter  
          be made available to law enforcement by the Department of  
          Justice, which shall post it with the offender's record on the  
          Department of Justice Internet Web site, and shall be accessible  
          only to law enforcement.

           This bill  would provide that if the registered sex offender is  
          sentenced to a period of incarceration, at either the state  
          prison or a county jail, the Facts of Offense Sheet would be  
          required to be sent by CDCR or the county sheriff to the  
          registering law enforcement agency in the jurisdiction where the  
          registered sex offender will be paroled or will live on release,  
          within three days of the person's release, with comparable  
          provisions applicable to the Department of Mental Health if the  
          person is committed to DMH.

          Assessments of Adult Males Incarcerated in Prison or Committed  
          to DMH

           Current law  generally requires probation to provide CDCR with an  
          offense report for persons committed to CDCR.  (Penal Code   
          1203(c).)




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           This bill  would require that if the person is being committed  
          to CDCR for a registerable sex offense, the probation officer  
          shall perform a risk assessment of the person using the  
          STATIC-99 assessment tool, as specified.
           
          This bill  would require that all adult males who have been  
          convicted of an offense for which they are required to register  
          as a sex offender and who are incarcerated in state prison or  
          committed to the Department of Mental Health be subject to sex  
          offender risk assessment as provided by this bill.   This bill   
          would require that the assessment take place at least four  
          months, but no sooner than 10 months, prior to release from  
          incarceration or commitment.

          This bill  would require CDCR to conduct risk assessments of all  
          parolees under active supervision and deemed to be high risk, as  
          specified.

          CDCR - Assessment of Prison Inmates
          
           This bill  would require CDCR to use the STATIC-99 assessment  
          tool to perform a risk assessment on all male inmates who are  
          convicted of a registerable sex offense, as specified, upon  
          commitment to the department unless they were assessed prior to  
          commitment.

           This bill  further would provide that, for those inmates already  
          in the custody of the department, the assessment shall be  
          performed prior to being released on parole, as specified.

          CDCR Inmates - Mandatory Control and Containment Programming
          
           This bill  would require that inmates who have a risk assessment  
          of moderate-high or high risk for committing a sex offense,  
          according to the STATIC-99, participate in sex offender control  
          and containment programming while incarcerated and while on  
          parole, as developed and specified by CDCR.   This bill  would  




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          require that programming be based on current, evidence-based  
          correctional standards that is proven to reduce the risk of  
          reoffending.

           This bill  would provide that notwithstanding any other provision  
          of law, inmates who fail to participate in the programming  
          prescribed shall not be eligible to earn any credits, as  
          specified.

           This bill  additionally would provide that an inmate serving a  
          life term may be excluded from sex offender programming until he  
          or she receives a parole date and is within five years of that  
          date, unless CDCR determines that the programming for that  
          inmate is necessary for the public safety.

           This bill  would provide that inmates who are condemned to death  
          or sentenced to life without the possibility of parole are  
          ineligible to participate in sex offender programming.

          Pre-Release Risk Assessment

           This bill  would require CDCR to conduct a pre-release risk  
          assessment, and would require that the person administering the  
          assessment be trained through an approved program, with updated  
          training no less frequently than every two years as determined  
          by CDCR, as specified.

           This bill  additionally would require that adult male registered  
          sex offenders who, subsequent to their conviction for a sex  
          offense, are convicted of a separate criminal offense resulting  
          in incarceration or commitment, or which would require a  
          probation officer's report, but who have not been the subject of  
          a risk assessment, be assessed in accordance with these  
          provisions.

          Parolees and Probationers
          
           This bill  would require adult male registered sex offenders who  




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          are on probation or parole as of the effective date of this  
          section be subject to a risk assessment using the STATIC-99.

           This bill  additionally would impose its risk assessment  
          requirements on adult male sex offenders convicted in a  
          jurisdiction other than California who are required to register  
          while living in California, who are being supervised in  
          California under an interstate compact or who are on federal or  
          military supervision in California.   This bill  would assign  
          priority to assessing those offenders who were assigned the  
          highest risk level under the STATIC-99 in the jurisdiction where  
          they were convicted.
           
          Current law  generally requires a probation officer to  
          immediately investigate and make a written report to the court  
          of his or her findings and recommendations, including his or her  
          recommendations as to the granting or denying of probation and  
          the conditions of probation, if granted.  (Penal Code  1203.)

           This bill  would require that if a person is convicted of a  
          felony registerable sex offense, the probation officer shall  
          administer the STATIC-99, as specified, to determine the  
          person's risk of reoffending, and would require the results of  
          the assessment be part of the report to the court.

           Current law  provides that if a person is convicted of a  
          misdemeanor, the court may either refer the matter to the  
          probation officer for an investigation and a report or summarily  
          pronounce a conditional sentence.

           This bill  would provide that if the crime requires the person to  
          register as a sex offender, the probation officer would be  
          required to administer the STATIC-99, as specified, to determine  
          the person's risk of reoffending.

          Access to Records by Persons Authorized to Perform STATIC-99  
          Assessment
          




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           This bill  would provide that any person authorized and trained  
          to perform STATIC-99 risk assessments shall be granted access to  
          all relevant records pertaining to a registered sex offender, as  
          specified.

           This bill  would require that all state and local agencies and  
          departments that maintain records that contain information about  
          registered sex offenders, as specified, maintain those records  
          during the lifetime of the registered sex offender.
           
          Specialized sex offender caseloads - Probation and Parole (Secs.  
          17; 47; 54)

           This bill would require probation departments and the parole  
          authority to create specialized caseloads for all sex offenders,  
          and to develop expertise in sex offender management.

           This bill  would require that sex offenders assessed at high risk  
          levels be monitored by agents responsible for reduced case  
          loads.

           This bill  would require that the risk assessment tier level  
          assigned to a registered sex offender be used to determine the  
          level of monitoring and control on supervision.

          Current law  provides that persons placed on probation by a court  
          are under the supervision of the county probation officer, who  
          determines both the level and type of supervision consistent  
          with the court-ordered conditions of probation.

           This bill  would require each county to designate certain  
          probation officers to monitor registered sex offenders, as  
          specified.   This bill  would require that these probationers  
          report more frequently to one of those designated probation  
          officers than any other probationer is required to report, and  
          shall be subject to intensive scrutiny by that designated  
          officer.





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           This bill  would require each probation department to "develop  
                                                                                   control and containment programming, in conjunction with (CDCR)  
          for persons who are designated at a moderate-high or high level  
          of risk based on the STATIC-99, and shall require participation  
          in appropriate programming of those persons as a condition of  
          probation."

           Current law  provides that the "Department of Corrections, to the  
          maximum extent practicable and feasible, and subject to  
          legislative appropriation of necessary funds, shall ensure, by  
          July 1, 2001, that all parolees under active supervision and  
          deemed to pose a high risk to the public of committing violent  
          sex crimes shall be placed on an intensive and specialized  
          parole supervision caseload."  (Penal Code  3005.)

           This bill  would revise this provision to incorporate the use of  
          the STATIC-99, and to require that these parolees report  
          frequently to designated parole offices.

           This bill  would require CDCR to develop control and containment  
          programming for sex offenders who have been assessed pursuant to  
          Section 5040 and shall require participation in appropriate  
          programming as a condition of parole.

           Plea Bargaining Scrutiny - Sex Crimes that are Subject to Life  
          Term Sentencing (Sec. 46)
           
           Existing law  provides that in presenting a plea bargain to a  
          crime defined as a "serious felony," the prosecutor must  
          demonstrate to the court that the plea bargain is necessary  
          because there is insufficient evidence to prove the serious  
          felony or that the sentence to be imposed under the plea bargain  
          would not be substantially different had the bargain not been  
          made.  (Pen. Code  1192.7.)

          This bill  states the intent of the Legislature that district  
          attorneys prosecute violent sex crimes under statutes that  
          provide sentencing under life-term schemes such as the  




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          one-strike law (Pen. Code  667.61), three strikes (Pen. Code  
           1170.12) and the habitual sexual offender law (Pen. Code   
          667.71), rather than by engaging in plea bargaining.

           This bill  provides that where a plea bargain is made in a case  
          where the defendant was charged with a sex crime that would be  
          punished by a life-term sentence, the prosecutor shall state on  
          the record why a sentence under those provisions was not sought.




           SEX CRIME SENTENCING
           
            New Crime:  25 to Life for Sex with a Child

          Under current law  a single count (chargeable and punishable act)  
          of rape is generally punishable by imprisonment in the state  
          prison for 3, 6 or 8 years.  (Penal Code  264.)

           This bill  would enact a new crime providing that any person 18  
          years of age or older who engages in sexual intercourse or  
          sodomy with a child who is 10 years of age or younger is guilty  
          of a felony and shall be punished by imprisonment in the state  
          prison for a term of 25 years to life.

            Increased Parole Period for Persons Convicted of Violent Sex  
            Crimes

          Existing law  generally provides that inmates serving a  
          determinate term of imprisonment shall be released on parole for  
          a period of three years.  Specified sex offenders (those  
          released after serving a determinate term of imprisonment and  
          specified in this bill) shall be released on parole for a period  
          of five years.  Specified sex offenders (those released by the  
          Board of Prison Terms following an indeterminate term of  
          imprisonment and specified in this bill) shall be released on  
          parole for a period of five years subject to an additional  




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          five-year period of parole, as specified.  (Pen. Code  3000,  
          subd. (b)(1) and (3).)
           
          This bill  increases parole for persons convicted of violent sex  
          crimes - sex offenses included in the list of violent crimes in  
          Penal Code Section 667.5, subdivision (c) - to 10 years.
           
          This bill  further provides that a person released on parole for  
          10 years for a violent sex crime can be held on parole and in  
          custody (for parole violations) for a total of 15 years.

            One-Strike (Life-Term) Sentencing for Oral Copulation or  
            Sexual Penetration of a Child (Other than Rape)
           
          Existing Law

           Existing law  includes the "one-strike" sex crime sentencing law  
          that provides sentences of 15 years or 25 years to life in  
          certain sex crimes if specified circumstances in aggravation are  
          found to be true.  (Pen. Code  667.61.)

           Existing law  states that the qualifying sex crimes under the  
          "one-strike" sex law are forcible rape, forcible spousal rape,  
          rape by a foreign object, forcible sodomy, forcible oral  
          copulation, specified sex crimes in concert, lewd and lascivious  
          acts with a child under the age of 14 accomplished by force or  
          duress, and lewd and lascivious acts with a child under the age  
          of 14 accomplished by other than force or duress where the  
          defendant is not eligible for probation.  (Pen. Code  667.61,  
          subd. (c).)

           Existing law  provides that if one of the enumerated aggravating  
          factors set out in Section 667.61, subdivision (d), is found to  
          be present, the qualifying sex offense is punishable by a term  
          of 25 years to life.  (Pen. Code  667.61, subd. (a).)

           Single Factor - 25 years to life  :
           Defendant was previously convicted of one of the qualifying  




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            sex offenses
           Defendant kidnapped the victim substantially increasing the  
            risk of harm
           Defendant inflicted aggravated mayhem or torture
           The crime involved residential burglary with the intent to  
            commit a sex offense

           Existing law  provides if one of the enumerated aggravating  
          factors in Section 667.61, subdivision (e) is found to be  
          present, the qualifying sex offense is punishable by a term  
          of 15 years to life.  If the crime involves two or more of  
          these factors, the defendant shall receive a term of 25 years  
          to life.  (Pen. Code  667.62, subds. (a)-(b).)

           One Factor - 15 years to life; Two Factors - 25 years to life  :

           Defendant committed the offense in the course of a  
            residential burglary
           Defendant kidnapped the victim
           Defendant personally used a dangerous or deadly weapon
           Defendant inflicted great bodily injury
           The victim was tied or bound
           The crime involved more than one victim
           The defendant administered a controlled substance by force,  
            violence or fear.
            (Pen. Code  667.61, subd. (e).)

           Existing law  provides that any person who commits a lewd or  
          lascivious act with a child under the age of 14 years shall be  
          imprisoned in state prison for 3, 6 or 8 years.  (Pen. Code   
          288.)  
           
          This Bill
          
           This bill  adds two new crimes to the crimes subject to  
          one-strike sentencing:  oral copulation involving a child under  
          the age of 10 and sexual penetration of a child under the age of  
          10.  This bill adds corresponding aggravating one-strike factors  




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          applicable where the child orally copulated the adult  
          perpetrator and where the adult sexually penetrated the child,  
          respectively.
           
                 Additional One-Strike Crimes and One-Strike Organization

           This bill defines as one-strike crime the use of credible  
          threats of future retaliation to commit rape (including spousal  
          rape) or oral copulation and sodomy.

           This bill  defines as one-strike crimes the following forms of  
          oral copulation in concert:  oral copulation in concert by force  
          or coercion, credible threats of future retaliation and where  
          the victim is mentally disordered, developmentally disabled or  
          physically disabled.

           This bill  defines as one-strike crimes the following forms of  
          sodomy in concert:  sodomy in concert by force or coercion and  
          by credible threats of future retaliation.

                  Elimination of Sentencing Credits for One-Strike Inmates
           
           Existing law  provides that a defendant sentenced to a term of  
          imprisonment of either 15 years to life or 25 years to life  
          under the provisions of the "one-strike" sentencing scheme  
          shall not have his or her sentence reduced by more than 15% by  
          good-time/work-time credits.  (Penal Code  667.61, subd.  
          (j).)

           This bill  eliminates conduct/work credits for inmates sentenced  
          under the one-strike law.

           This bill  eliminates a provision allowing probation for a person  
          convicted under the one-strike law if the person qualifies for  
          probation under Penal Code Section 1203.066, which allows  
          probation for persons convicted of lewd conduct only under  






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          limited circumstances.<4>

                  Continuous Sexual Abuse of a Child as a One-Strike Crime
           
           Existing law  provides that "continuous sexual abuse of a child"  
          is committed where a person who has recurring access to a child  
          engages in three or more acts of "substantial sexual conduct" or  
          lewd conduct with a child under the age of 14 over a period of  
          at least three months' time.  It is punished by a prison term of  
          6, 12 or 16 years.  (Pen. Code  288.5.)

           This bill  adds continuous sexual abuse of a child as a  
          one-strike crime.

                  Aggravated Kidnapping (for Purposes of Sex Crime) - Life  
               Terms
           
          Existing Law

           Existing law  generally defines kidnapping as the taking and  
          carrying away of another by force or fear, and punishes this  
          crime by imprisonment in the state prison for 3, 5, or 8 years.   
          The element of carrying away is defined as "asportation."  (Pen.  
          Code  207, subd. (a), and 208, subd. (a); People v. Martinez  
          (1999) 20 Cal.4th 225.)


           Existing law  does not require asportation in kidnapping for  
          ransom.  Kidnapping for ransom can be proved by false  
          imprisonment and ransom demands.  Kidnapping for ransom is  
          punishable by life in prison without parole where the victim  
          dies, suffers bodily harm, or is subjected to a substantial  
          likelihood of death, and by life with the possibility of parole  
          ---------------------------
          <4>  As one-strike factors are charged by the district attorney,  
          the prosecutor can effectively control whether a defendant may  
          be eligible for probation for a sex crime.  For the most part,  
          the prosecutor's charges control whether a defendant is eligible  
          for probation for lewd conduct, per se.



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          in other circumstances.  (People v. Anderson (1979) 97  
          Cal.App.3d 419, 425; Pen. Code  209, subd. (a).)

           Existing law  provides that "aggravated kidnapping" - kidnapping  
          for robbery, rape or spousal rape, oral copulation, sexual  
          penetration or sodomy, where the movement of the victim  
          substantially increased the risk of harm beyond that inherent in  
          the underlying offense - is punishable by imprisonment in the  
          state prison for life with the possibility of parole.  (People  
          v. Martinez (2000) 20 Cal.4th 225; Pen. Code  209, subd. (b).)

           Existing law  , as set out in the kidnapping for robbery case of  
          People v. Rhoden (1972) 6 Cal.3d 519, provides that aggravated  
          kidnapping requires that the movements of the victim have been  
          accomplished by force, rather than by fraud or the like.

           Existing law  provides that a person committed to prison for life  
          cannot be granted parole for 7 years, unless a longer period of  
          time is specified.  (Pen. Code  3046.)

           Existing law  provides that any person who commits a lewd or  
          lascivious act with a child under the age of 14 years shall be  
          imprisoned in state prison for 3, 6 or 8 years.  (Pen. Code   
          288.)  Where force or duress was used the court can or must  
          impose fully consecutive terms for each separate count.  (Pen.  
          Code  667.6, subds. (c) and (d).)

           Existing law  defines a lewd act with a child as:

           Any touching (through clothing or on the skin) of a child  
            (by the defendant or by the child at the instigation of  
            the defendant);
           Done for sexual gratification (of the perpetrator or the  
            child).  (People v. Martinez (1995) 11 Cal.4th 434, 452.)   
            While lewd conduct generally involves sexually motivated  
            touching of a child's breasts, buttocks or external sexual  
            organs, lewd conduct may involve sexually motivated  
            touching of any part of the body with sexual intent.   




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            (Ibid.)
           Defined sex crimes (rape, oral copulation, etc.) may also  
            be charged as lewd conduct.  (People v. Pearson (1986) 42  
            Cal.3d 351.)

           Existing law  defines two forms of lewd conduct with a child  
          under the age of 14:  1)  Where the crime is accomplished by  
          force, fear, duress or menace.  2)  Where no force, fear,  
          duress, etc., is used.  The sentence for the crime itself is the  
          same whether or not force or duress was used.  However, numerous  
          other consequences apply based on whether or not the crime  
          involved force or duress.  (Pen. Code  288, subds. (a)-(b).)
           


          Existing law  , as interpreted by the courts, defines or describes  
          force, duress and menace thus:


            Force  :  The majority of cases hold that the element of  
            "force" is shown by force that allowed the defendant to  
            accomplish the act without the child's consent.  (People v.  
            Neel (1993) 19 Cal.App.4th 1784.)


            Duress  :  Direct or implied threat of force, violence, danger,  
            hardship or retribution sufficient to allow commission of the  
            act.  The jury shall consider all of the circumstances in  
            determining whether duress was proved, including the age of  
            the victim and his or her relationship to the defendant.   
            (People v. Pitmon (1985) 170 Cal.App.3d 38, 47-51.)  (e.g., a  
            threat to send a child to bed without dinner would appear to  
            constitute duress.)
           
          Existing law  provides that lewd conduct with a child of 14 or 15  
          years of age (regardless of whether or not force or fear was  
          used), where the defendant was more than 10 years older than the  
          victim, is an alternate felony-misdemeanor punishable by  




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          imprisonment in the county jail for up to 1 year or in state  
          prison for "one, two or three years."  (Pen. Code  288, subd.  
          (c).
          (Note:  The standard triad for a felony is 16 months, 2 years or  
          3 years.)


           Existing law  provides that a caretaker of a dependent adult who  
          commits a lewd act with the dependent person by means of force  
          or duress is guilty of a felony punishable by 3, 6 or 8 years in  
          prison.  Where force or duress is not used, the perpetrator is  
          guilty of an alternate felony-misdemeanor punishable by  
          imprisonment in the county jail for up to 1 year or in state  
          prison for "one, two or three years."  (Pen. Code  288, subds.  
          (b)(2) and (c)(2).)
           
          Existing law  provides that a person who commits rape, spousal  
          rape or sexual penetration (other than rape) in concert (by two  
          or more perpetrators) shall be punished by imprisonment for 5,  
          7, or 9 years.  It appears that a person who commits a sex crime  
          in concert is necessarily guilty of the underlying crime.  

           This Bill
           
           This bill adds undefined lewd conduct ( 288) and rape or sexual  
          penetration in concert ( 264.1) to the target crimes of  
          aggravated kidnapping.

                  Assault with Intent to Commit a Sex Crime or Mayhem  
               during a Residential Burglary (Sec. 5)
          
          Existing law  provides that "any person who assaults another  
          with the intent to commit mayhem, rape, sodomy, oral  
          copulation, or any violation of Section 264.1 [rape or sexual  
          penetration in concert with others], 288 [lewd conduct with a  
          child or dependent adult] or 289 [sexual penetration]" is  
          guilty of a felony, punishable by imprisonment for 2, 4 or 6  
          years.  (Pen. Code  220.)  Assault with intent to commit a sex  




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          crime has been described as an aggravated form of an attempt to  
          commit a sex crime - the aggravation being the assault, which  
          is defined as the intent to commit a violent injury.  

          This bill  provides that a person who, during the commission of a  
          residential burglary, commits assault with intent to commit  
          specified sex crimes (rape or sexual penetration in concert,  
          rape, sodomy, oral copulation, lewd conduct and sexual  
          penetration) is guilty of a felony and shall be punished by  
          imprisonment for life with the possibility of parole, regardless  
          of whether or not the defendant intended to commit a sex crime  
          when he entered the residence.

                  Aggravated Sexual Assault of a Child (Sec. 6)
          
          Existing law  (Pen. Code  269) provides that where the defendant  
          commits a specified sex crime by force or coercion against a  
          victim who is under 14 years of age, and where the defendant is  
          more than 10 years older than the victim, is guilty of  
          aggravated sexual assault of a child and shall be imprisoned for  
          a term of 15 years to life.  The crimes included in aggravated  
          sexual assault of a child are:  specified sex crimes in concert  
          (two or more perpetrators), sodomy, oral copulation, sexual  
          penetration.

           This bill  reduces the age difference between the perpetrator and  
          the victim in this crime from 10 to 7 years.

           This bill  includes an aggravated sexual assault of a child the  
          specified sex crimes when committed by credible threats to  
          retaliate in the future against the victim or another person.

           This bill  requires consecutive sentencing for each count of  
          conviction if the crimes involved separate victims or the same  
          victim on separate occasions.

                  Continuous Sexual Abuse of a Child as a One-Strike Crime  
               and Elimination of Specified Multiple Punishment  




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               Restrictions in Continuous Sexual Abuse Cases (Sec. 8)
           
           Existing law  provides that "continuous sexual abuse of a child"  
          is committed where a person who has recurring access to a child  
          engages in three or more acts of "substantial sexual conduct" or  
          lewd conduct with a child under the age of 14 over a period of  
          at least three months' time.  It is punished by a prison term of  
          6, 12 or 16 years.  (Pen. Code  288.5.)
           
          This bill  adds continuous sexual abuse of a child as a  
          one-strike crime.

           Existing law  provides that a defendant who is charged with  
          continuous sexual abuse of a child cannot be charged with any  
          "other felony sex offense" against the same victim that occurred  
          during the period of times that the continuous sexual abuse  
          occurred.


           This bill  provides that a defendant who commits sex crimes other  
          than the conduct that constitutes continuous sexual abuse of a  
          child (three acts of substantial sexual conduct or three acts of  
          lewd conduct over at least three months' time), the defendant  
          can be separately prosecuted and punished for the other sex  
          crimes.  This change responds to appellate decisions barring  
          prosecution for any sex crimes, other than the continuous sexual  
          abuse of the child, that occurred within the time period when  
          the continuous abuse occurred.<5>
           
                 Habitual Sexual Offender Law (Sec. 43)
          
          Existing law  (the habitual sexual offender law) provides that a  
          ---------------------------
          <5>  For example, if the defendant is charged with continuous  
          sexual abuse involving three acts of touching of the child's  
          genitals, and the defendant also committed forced sodomy during  
          that time period, under the current language the defendant could  
          not be punished for sodomy.  This bill eliminates that  
          limitation.



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          person previously convicted of specified sex crimes or convicted  
          of kidnapping of a child for lewd conduct who is convicted in  
          the current case of one of those offenses shall be sentenced to  
          a term of 25 years to life on each count of conviction.  (Pen.  
          Code  667.71)<6>   The prior qualifying crimes are:

           Rape/spousal rape by force, duress, etc. (Pen. Code  261,  
            subd. (a)(1), 262, subd. (a)(1))
           Rape or sexual penetration in concert (Pen. Code  264.1)
           Lewd conduct with a child under 14 (Pen. Code  288, subds.  
            (a)-(b)
           Sexual penetration (Pen. Code  289, subd. (a))
           Continuous sexual abuse (Pen. Code  288.5)
           Sodomy by force or duress, etc. (Pen Code  286)
           Sodomy in concert (Pen. Code  286, subd. (d))
           Oral copulation by force, duress, etc. (Pen. Code  288a,  
            subds. (c)-(d))
           Kidnapping a child under 14 for lewd conduct by seduction,  
            misrepresentation, etc.
            (Pen. Code  207, subd. (b))
           Kidnapping for sex crimes (former Pen. Code  208, subd. (d))
           Aggravated kidnapping for purposes of specified sex crimes  
            (Pen. Code  209)
           Aggravated sexual abuse of a child (Pen. Code  269)
           Conviction in other jurisdiction with elements of an offense  
            described above.

           Existing law  , as set out in relevant decisional law, provides  
          that the life term imposed under the habitual sexual offender  
          law shall be imposed in conjunction with a Three Strikes  
          sentence or the one-strike law, although not a combination of  
                                                  ---------------------------
          <6>  The prior crimes subjecting a person to habitual sexual  
          offender penalties constitute prior "strikes" for purposes of  
          the Three Strikes law.  The interaction of the two laws, as well  
          as the one-strike law, can produce sentences of well over 100  
          years.  (People v. Murphy (2001) 25 Cal.4th 136 - 160 years to  
          life for two counts of non-forced lewd conduct where defendant  
          had two prior similar convictions.)



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          all three.  (People v. Murphy, supra, 25 Cal.4th at pp. 140-141;  
          People v. Snow (2003) 105 Cal.App.4th 271, 281-283.)


           Existing law  prohibits or severely restricts probation for  
          persons convicted of sex crimes.  Generally, persons convicted  
          of sex crimes by force, fear or duress cannot receive probation.  
           In numerous cases where probation may be granted (e.g. rape,  
          sodomy or oral copulation by using the authority of public  
          office to arrest or deport another, or assault with intent to  
          commit a sex crime), the court must state on the record the  
          unusual circumstances justifying probation.  (Pen. Code   
          1203.065.)

           Existing law  requires a court to fully evaluate a defendant's  
          application for probation, including holding a hearing to  
          determine if the defendant poses a threat to the victim, in  
          specified sex crime convictions where probation may be granted.   
          (Pen. Code  1203.067.)

           This bill  prohibits a court from granting a defendant probation  
          or exercising its discretion to dismiss a prior conviction  
          allegation in an habitual sexual offender case.

           This bill  provides that habitual sexual offender allegations  
          shall be set out in the "accusatory pleading," rather than the  
          "information," as provided in existing law.

           This bill  expands the oral copulation convictions subject to  
          the habitual sexual offender law by eliminating the  
          requirement that in specified forms of the crime that the  
          crime be accomplished by force, duress or fear of immediate  
          bodily injury.  The affected forms of the crime include 1)  
          oral copulation where the victim is under 14 years of age and  
          the perpetrator is more than 10 years older than the victim  
          (Pen. Code  288a(c)(1)); 2) oral copulation through credible  
          threats of future retaliation (Pen. Code  288a(c)(3); and 3)  
          or oral copulation in concert (multiple perpetrators) through  




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          threats of future retaliation or where the victim of the crime  
          cannot give consent because of a disability or mental  
          disorder, or oral copulation.

           This bill  expands the sodomy convictions subject to the  
          habitual sexual offender law by eliminating the requirement  
          that in specified forms of the crime that the crime be  
          accomplished by force, duress or fear of immediate bodily  
          injury.  The affected forms of the crime include 1) sodomy  
          where the victim is under 14 years of age and the perpetrator  
          is more than 10 years older than the victim (Pen. Code   
          288a(c)(1)); 2) sodomy through credible threats of future  
          retaliation (Pen. Code  288a(c)(3); and 3) or oral copulation  
          in concert (multiple perpetrators) through threats of future  
          retaliation.

           This bill  adds sexual penetration (other than rape) where the  
          victim is under 14 years of age and the perpetrator is more than  
          10 years older than the victim (Pen. Code  289, subd. (j)) to  
          the habitual sexual offender law.  (Under existing law where a  
          defendant has been convicted of this form of sexual penetration  
          and the victim is under the age of 10 the prosecution can seek a  
          sentence of 25 years to life for a first conviction.  Where the  
          victim is over the age of 10, the court shall impose a term of 25  
          years to life for a second conviction.)  (Pen. Code  289, subd.  
          (j)(2).)

           This bill  eliminates sentencing credits that under existing law  
          can reduce a defendant's minimum term by up to 15%.

           This bill  makes technical changes to various statutory  
          references.  
           
                  Violent Felony List - Limits on Prison Sentencing  
               Credits, Definition of Prior Strikes and Other Consequences  
                (Sec. 39)
          
          Existing law  defines specified crimes as "violent felonies,"  




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          from which designation numerous consequences flow, including  
          that violent crimes (in addition to "serious felonies")  
          constitute prior "strikes" for purposes of the Three Strikes law  
          and that an inmate serving a sentence for a violent felony can  
          earn no more than 15% sentencing credits to reduce his or her  
          sentence.<7>  (Pen. Code  667.5, subd. (c).)

           Existing law  includes a largely anachronistic provision  
          requiring a three-year enhancement for each prior violent felony  
          conviction where a defendant is convicted in the current case of  
          a violent crime.  This enhancement has been effectively  
          superseded by the Three Strikes law, which imposes much higher  
          prison terms for defendants convicted of violent offenses.

           Existing law  includes as violent felonies, in addition to very  
          numerous other offenses, violent felony and sodomy accomplished  
          by force or coercion.
           
          This bill  expands the violent felony list to include sodomy, or  
          oral copulation or sexual penetration (other than rape) in which  
          the victim is under that age of 14 and the perpetrator is more  
          than 10 years older than the victim.

           This bill  expands the violent felony list to specifically  
          include in-concert sodomy or oral copulation accomplished by  
          force or coercion (although any form of forced or coerced sodomy  
          or oral copulation is included in the existing violent felony  
          list), or in-concert sodomy or oral copulation by a credible  
          threat to retaliate.

           This bill  includes as a violent felony any sodomy or oral  
          copulation or sexual penetration (other than rape) accomplished  
          through a credible threat to retaliate against the victim or  
          another person in the future.

           This bill  includes as a violent felony oral copulation in  

          ---------------------------
          <7>  Defendants serving a life term (third strike) Three Strikes  
          sentence can earn no sentencing credits.



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          concert where the victim is mentally disordered, developmentally  
          disabled or physically disabled.

           This bill  makes a technical change to the reference to lewd or  
          lascivious conduct with a child (Pen. Code  288.)

           This bill  makes a technical change to the reference in the  
          violent felony list to sex crimes in concert.

                  Enhancement for Administering Controlled Substance in  
               the Commission of a Felony - Greater Punishment in Sex  
               Crimes (Sec. 56)
           
           Existing law  provides that where the perpetrator of a felony  
          administers a controlled substance by force or threat of  
          immediate injury, the defendant's prison sentence shall be  
          enhanced by three years.  (Penal Code  12022.75.)

           This bill  provides that where the defendant administers a  
          controlled substance with intent to commit a specified sex  
          offense, the defendant shall receive a sentence enhancement of  
          five years.  To establish this enhancement, the prosecution need  
          not show that force or threat was used in the administration of  
          the controlled substance.

                  Penal Code Section 667.6  - Special Consecutive  
               Sentencing Provisions in Sex Crimes; and (Largely  
               Superseded) 5-Year or 10-Year Sentencing Enhancements  
               (Secs. 40; 41; 50; 51)
           
           Existing law  provides that the court can or must impose fully  
          consecutive terms for each count of conviction (separate sex  
          crime) in a sex crimes prosecution involving specified offenses.  
           (Pen. Code  667.6, subds. (c) and (d).)  Where the crime  
          involved multiple victims or where the crimes were committed on  
          separate occasions, the court must impose consecutive terms.   
          Crimes occurred on separate occasions where the defendant had an  
          opportunity to reflect between two crimes.




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           Existing law  provides that where a defendant is convicted of a  
          specified sex offense and has been previously convicted of such  
          an offense, the defendant shall receive a sentence enhancement  
          of five years.  Where the defendant has been previously  
          convicted of two or more such offense, the sentence enhancement  
          shall be 10 years.  (Penal Code  667.51.)

           This bill  adds various forms of sex crimes, such as commission  
          of sodomy, oral copulation or sexual penetration other than rape  
          by threats to retaliate in the future, to consecutive sentencing  
          provisions of Section 667.6, subdivisions (c) and (d).

           Existing law  prohibits probation where the defendant is  
          convicted of specified crimes - murder, robbery, kidnapping,  
          residential burglary, torture, rape, assault to commit a sex  
          crime and others - in which the defendant used a firearm.   
          Further, where the defendant was previously convicted of such a  
          crime, and was convicted in the current case of a crime in  
          which the defendant used a firearm, probation is prohibited.   
          (Pen. Code  1203.06.)  Section 1203.06 also prohibits  
          probation for a person convicted of aggravated arson.

           This bill  adds numerous sex crimes - sodomy, oral copulation,  
          sexual penetration (other than rape), aggravated sexual  
          assault of a child - to the firearm-use probation prohibition  
          in Section 1203.06.

           This bill  prohibits the court from relying on Section 1385 so as  
          to dismiss an allegation that would bring the defendant within  
          the probation bar in Section 1203.06, the provision barring  
          probation for the use of a firearm during the commission of  
          specified felonies.  (Penal Code Section 1385 authorizes a court  
          to dismiss any action, or any portion thereof, in the interests  
          of justice, unless the Legislature has clearly prohibited the  
          court from exercising such discretion.)

           This bill strikes a provision that does not prohibit adjournment  




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          of criminal proceedings pursuant to Welfare and Institutions  
          Code sections concerning commitments to state mental hospitals.   
          (It appears that the provision in existing Section 1203.06  
          applied to the former Mentally Disordered Sexual Offenders' law,  
          under which persons were committed for mental health treatment  
          rather than being sent to prison.)

           Existing law  prohibits probation for defendants convicted of  
          specified sex crimes committed by force or coercion.  (Pen. Code  
           1203.065, subd. (a).)  Section 1203.065 also prohibits  
          probation in specified pimping and pandering offenses.

           This bill  adds specified sex crimes committed through credible  
          threats of future retaliation (rape, sodomy, oral copulation or  
          sexual penetration other than rape) and specified crimes  
          committed in concert (sodomy or oral copulation) to the  
          probation prohibitions of Section 1203.065.

           This bill  adds aggravated sexual assault of a child to the  
          probation prohibition provisions in Section 1203.065.
           
                 Probation Prohibitions (Secs. 50; 52)
          
          Existing law  prohibits probation where the defendant is convicted  
          of specified crimes - murder, robbery, kidnapping, residential  
          burglary, torture, rape, assault to commit a sex crime and others  
          - in which the defendant used a firearm.  Further, where the  
          defendant was previously convicted of such a crime, and was  
          convicted in the current case of a crime in which the defendant  
          used a firearm, probation is prohibited.  (Pen. Code  1203.06.)   
          Section 1203.06 also prohibits probation for a person convicted of  
          aggravated arson.

           This bill  adds numerous sex crimes - sodomy, oral copulation,  
          sexual penetration (other than rape), aggravated sexual assault  
          of a child - to the firearm-use probation prohibition in Section  
          1203.06.





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           This bill  prohibits the court from relying on Section 1385 so as  
          to dismiss an allegation that would bring the defendant within  
          the probation bar in Section 1203.06, the provision barring  
          probation for the use of a firearm during the commission of  
          specified felonies.<8>

           This bill  strikes a provision that does not prohibit adjournment  
          of criminal proceedings pursuant to Welfare and Institutions  
          Code sections concerning commitments to state mental  
          hospitals.<9>

           Existing law  prohibits probation for defendants convicted of  
          specified sex crimes committed by force or coercion.  (Pen. Code  
           1203.065, subd. (a).)  Section 1203.065 also prohibits  
          probation in specified pimping and pandering offenses.

           This bill  adds specified sex crimes committed through credible  
          threats of future retaliation (rape, sodomy, oral copulation or  
          sexual penetration other than rape) and specified crimes  
          committed in concert (sodomy or oral copulation) to the  
          probation prohibitions of Section 1203.065.)

          This bill  adds aggravated sexual assault of a child to the  
          probation prohibition provisions in Section 1203.065.

           Existing law  prohibits probation for persons convicted of  
          specified crimes in which the defendant, intending to inflict  
          great bodily injury, did in fact inflict such injury.

           This bill  adds commission of a lewd act with a child under the  
          ---------------------------
          <8>  Penal Code Section 1385 authorizes a court to dismiss any  
          action, or any portion thereof, in the interests of justice,  
          unless the Legislature has clearly prohibited the court from  
          exercising such discretion.
          <9>  It appears that the provision in existing Section 1203.06  
          applied to the former Mentally Disordered Sexual Offenders' law,  
          under which persons were committed for mental health treatment  
          rather than being sent to prison.



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          age of 14, lewd acts with a person who is 14 or 15 years of age,  
          or lewd acts with a dependent adult to the probation prohibition  
          provisions in Section 1203.075.

           This bill  adds continuous sexual abuse of a child to the  
          probation prohibition provisions in Section 1203.075.

           This bill  makes additional related and technical changes to  
          Section 1203.075.

                  Qualifying Prior Convictions under the Three Strikes Law  
               (Secs.  37 and 45)
          
          Existing law  provides that a criminal defendant who is convicted  
          of any felony, and who has been convicted of two or more  
          "serious" (Pen. Code  1192.7, subd. (c)) or "violent" (Pen.  
          Code  667.5, subd. (c)) felonies shall be imprisoned for a term  
          of at least 25 years to life.  Where the defendant has a single  
          prior serious or violent felony conviction, the defendant's term  
          in the current case is doubled.

           Existing law  provides that qualifying prior serious and violent  
          convictions (prior strikes) are those crimes so defined as of  
          March 2000 - the date of the enactment of Proposition 21 of the  
          March, 2000 Primary Election.  (Pen. Code  667, subds.  
          (b)-(i), 667.1, 11170.12 and 1170.125.)

           This bill  defines qualifying prior strikes as those offenses  
          defined as serious or violent as of the effective date of this  
          bill.  
           
                  Prohibition on Traditional Judicial Discretion to  
               Dismiss an Action or any Part Thereof in this Bill
           
           Existing law  grants trial courts, as an inherent judicial  
          function, the authority to dismiss a criminal action or any part  
          thereof in the interests of justice.  (Pen. Code  1385.)





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           Existing decisional law  provides that court discretion under  
          Section 1385 can only be prohibited or limited by clear and  
          explicit legislative or initiative language.  (People v.  
          Superior Court (1996) 13 Cal.4th 497.)  In Romero, the Supreme  
          Court held that the Three Strikes law did not clearly prohibit  
          judicial discretion to dismiss a prior qualifying conviction.)  

           Existing law  does include statutes, such as the 10-20-life  
          firearm enhancements - that clearly and explicitly prohibit  
          Section 1385 discretion.

           This bill  prohibits a court from exercising discretion under  
          Section 1385 where the defendant is convicted under the habitual  
          sexual offender law and explicitly prohibits the exercise of  
          discretion under Section 1385 in other circumstances where  
          discretion is currently limited or barred, such as the  
          one-strike law and the ban on probation where the defendant used  
          a gun. 

           SEX OFFENDER REGISTRATION (Sec. 11)

           Current law generally requires people who have been convicted of  
          specified sex offenses to register at least annually with the  
          chief of police of the city in which he or she is residing, or  
          the sheriff of the county if he or she is residing, in an  
          unincorporated area or city that has no police department, and,  
          additionally, with the chief of police of a campus of the  
          University of California, the California State University, or  
          community college if he or she is residing upon the campus or in  
          any of its facilities, within five working days of coming into,  
          or changing his or her residence within, any city, county, or  
          city and county, or campus in which he or she temporarily  
          resides, for the rest of his or her life while residing in  
          California, or while attending school or working in California,  
          as specified.  (Penal Code  290.)

           This bill  would require the registering agency to give the  
          registrant a copy of the completed Department of Justice form  




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          each time the person registers or reregisters, including at the  
          annual update. 

           This bill  would require that on or before January 1, 2010, the  
          Department of Justice shall renovate the VCIN to do the  
          following:  

           (1)Correct all software deficiencies affecting data integrity  
              and include designated data fields for all mandated sex  
              offender data.
           (2)Consolidate and simplify program logic, thereby increasing  
              system performance and reducing system maintenance costs.  
           (3)Provide all necessary data storage, processing, and search  
              capabilities.
           (4)Provide law enforcement agencies with full Internet access  
              to all sex offender data and photos.
           (5)Incorporate a flexible design structure to readily meet  
              future demands for enhanced system functionality, including  
              public Internet access to sex offender information pursuant  
              to Section 290.46.

           MEGAN'S LAW
           
          Under current law, the Department of Justice ("DOJ") is required  
          to make information about registered sex offenders available to  
          the public via an Internet Web site, as specified.  (Penal Code  
           290.46.)  DOJ is required to include on this Web site a  
          registrant's name and known aliases, a photograph, a physical  
          description, including gender and race, date of birth, criminal  
          history, any other information that the Department of Justice  
          deems relevant unless expressly excluded under the statute.   
          (Id.)

           This bill  would require the Web site to display the risk  
          assessment tier level for each posted registrant who has been  
          assessed by the STATIC-99.

           This bill  would provide that if no risk assessment has been  




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          done, the Web site shall state, "Risk Level-Not Yet Assessed."

           This bill  would require specified entities which perform risk  
          assessments to provide DOJ with risk assessment information  
          about registrants, as specified.

           This bill  would require that the Web site display the date of  
          conviction and the date of release from incarceration or  
          commitment for each posted registrant.   This bill  additionally  
          would require that the Web site also post, in a separate section  
          from those listing current registered sex
          offenders, the names and reported state of destination, if any,  
          of former registrants who have been deported or moved out of  
          state.

           This bill  would require that the Web site display any prior  
          adjudication as a sexually violent predator.

           This bill  adds crimes to the Internet Web site requirements  
          which would be enacted by this bill, as specified.

           Current law  provides a mechanism for certain registered sex  
          offenders to apply to DOJ to be excluded from the Megan's Law  
          Web site.  This potential exclusion includes Section 647.6  
          (child annoyance,) provided the offense is a misdemeanor.

           This bill  would revise the misdemeanor child annoyance  
          provision to apply only if the person has a risk assessment  
          level of low or moderate-low.

           This bill  additionally would require DOJ to periodically review  
          the list of persons excluded and, if DOJ determines that a  
          person who was granted an exclusion under a former version of  
          this subdivision would not qualify for an exclusion under the  
          current version of this subdivision, the department would be  
          required to rescind the exclusion, make a reasonable effort to  
          provide notification to the person, and, no sooner than 30 days  
          after notification is attempted, make information about the  




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          offender available to the public on the Internet Web site.

           This bill  would require the Attorney General, in collaboration  
          with local law enforcement and others knowledgeable about sex  
          offenders, to develop strategies to assist members of the public  
          in understanding and using publicly-available information about  
          registered sex offenders to further public safety, as specified.

           Preservation of Court Records Concerning Registered Sex  
          Offenders (Secs. 3 and 58)
           
           Current law  generally authorizes trial court clerks to destroy  
          court records after certain periods of time depending upon the  
          nature of the record, as specified.  (Government Code  68152.)  
           Criminal records must be retained a specified period depending  
          upon the nature of the conviction.  (Government Code   
          68152(e); (f).)

           This bill  would require that records relating to a person  
          required to register with law enforcement as a sex offender, as  
          specified, be retained for the life of the person.

           This bill  would enact a new law providing that a state or local  
          law enforcement agency shall not destroy any records relating to  
          a person who is required to register as a sex offender for as  
          long as the person is living.  

           FINES; APPLIED TO SAFE TEAMS (Sec. 19)  

           Existing law  provides that every person convicted of any of a  
          list of specified sex offenses which require lifetime  
          registration shall, in addition to any imprisonment, fine, or  
          both, be punished by an additional fine of $200 upon a first  
          conviction, and $300 upon a subsequent conviction, as specified,  
          including a finding of ability to pay by the courts; that money  
          shall be deposited and used by counties with a DNA testing  
          laboratory for that lab; a percentage of money from those fines  
          for  second or subsequent convictions  shall be transferred and  




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          used by the Department of Justice for the Sexual Habitual  
          Offender program - monitoring, apprehending, and prosecuting; and  
          a percentage from all of the fines shall be transferred and used  
          by the Department of Justice for DNA testing for law enforcement  
          purposes; and those funds shall be used for other purposes, as  
          specified.  (Penal Code  290.3.)

           This bill  increases the existing fines to be imposed on those sex  
          offenders from $200 to $300 for a first offense and from $300 to  
          $500 for a second offense with an amount equal to $100 for every  
          fine imposed in excess of $100 to be transferred to CDCR to fund  
          SAFE Teams, as specified.
           
          Title; Legislative Findings and Declarations  

           This bill  would enact the "Sex Offender Punishment, Control, and  
          Containment Act of 2006," and makes specified legislative  
          findings and declarations concerning sex offenders.

                                      COMMENTS


          1.  Stated Need for This Bill
           
          The author states:

                 The purpose of the bill is to provide a  
                 comprehensive, proactive approach to preventing  
                 the victimization of Californians by sex  
                 offenders.  Under current law, California's  
                 tactical methods and infrastructure are  
                 insufficient for law enforcement to appropriately  
                 assess, convict and monitor sex offenders. 

                 SB 1128 is the product of months of discussion  
                 with, and input from, experts in the area.  It  
                 incorporates a broad spectrum of approaches  
                 recognized by law enforcement and avoids key flaws  




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                 that have marred other bills on this subject, such  
                 as residency requirements that dump offenders into  
                 rural communities or provisions that inadvertently  
                 tie the hands of police in performing Internet  
                 sting operations.

                 SB 1128, the Sex Offender Punishment, Control and  
                 Containment Act of 2006:  Increases the prison  
                 term for child rape to 25 years to life; Expands  
                 the Megan's Law database;  Toughens penalties for  
                 child pornography;  Toughens penalties for  
                 Internet predators;  Ensures police can use  
                 on-line decoys to catch Internet predators;  
                 Discourages prosecutors from offering plea  
                 bargains in sex offense cases; Gives state and  
                 local officials a new system to monitor dangerous  
                 parolees; Increases parole time for violent sexual  
                 offenses; Keeps sex offenders away from schools,  
                 parks, and other places where vulnerable  
                 populations, including the elderly and disabled,  
                 congregate.

                 By taking this comprehensive approach SB 1128 will  
                 make all of California's communities safer from  
                 all sexual predators, not just some.

          2.  What This Bill Does
           
          This is a wide-ranging measure which amends or enacts numerous  
          statutory provisions concerning sex crimes pertaining to  
          penalties, offender risk assessments, prevention, supervision  
          and civil commitment.  Broadly, the bill contains provisions in  
          the following areas:

                 Child luring;
                 Sex offender loitering around school grounds and other  
               places;
                 Child pornography;




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                 Child safety programs;
                 SAFE teams;
                 Recidivism risk assessments for registered sex  
               offenders;
                 Enhanced parole and probation provisions for sex  
               offenders;
                 Extended parole periods for all violent sex offenses;
                 Prosecution of sex offenses and plea bargains;
                 Sexually violent predators;
                 Sentencing provisions for sex offenses;
                 Updated Megan's Law database and increased  
               information on the Megan's Law Web site; and
                 Sex offender registration.

          As set forth in detail above and discussed below, this bill  
          contains many of the largely technical sentencing provisions  
          contained in SB 588 (Runner), heard by the Committee earlier  
          this year.  This bill differs from the Runner bill (and the  
          Runner initiative recently submitted to the Secretary of State  
          for signature verification) in the following major ways:

                 This bill does not contain the 2000 foot school and park  
               residency ban on registered sex offenders contained in SB  
               588;
                 This bill proposes a child luring crime which, unlike SB  
               588, includes within its scope police stings where  
               non-minors are used;
                 This bill proposes indeterminate sentencing for sexually  
               violent predators who have been civilly committed with  
               minimum constitutional guarantees not included in SB 588;
                 This bill closes the parole tolling loophole that  
               currently exists in the SVP law in a manner more  
               comprehensive than SB 588;
                 This bill proposes wide-ranging reforms to several child  
               pornography statutes, including a sentencing scheme for  
               child pornography broader and with greater sentence  
               increases than those proposed by SB 588; and
                 This bill does not propose GPS for all felony registered  




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               sex offenders, as does SB 588.

          This bill additionally contains provisions not previously  
          considered by the Legislature, such as a statewide system for  
          performing recidivism risk assessments on all registered sex  
          offenders.

          3.  The Sexually Violent Predator ("SVP") Law:  Reflections and  
          Lessons from the Washington    State SVP Program
           
                 History - Washington State had the First SVP Law in the  
               Country

          Washington State enacted the first sexually violent predator law  
          in the country in 1990.  As a general rule, these laws allow  
          civil confinement for treatment of a mental disorder for a  
          person who was first punished for a sex crime.

          Over the last 70 years, however, many states have implemented  
          laws to commit sex crime perpetrators to mental hospitals  
          instead of prisons.  California's law - the Mentally Disordered  
          Sex Offender (MDSO) law - has been repealed, but some persons  
          are still being held in civil confinement for successive,  
          determinate two-year terms.  Washington has had a similar law.

          Arguably, California and Washington State have a similar mix of  
          rural and urban areas.  California and Washington are both in  
          the Federal 9th Circuit.  Thus, the same federal appellate  
          courts hear SVP cases from both states.  Important federal  
          rulings on the Washington law may be instructive to California  
          lawmakers.

                 California SVP Law was Drawn in Significant Part from  
               Washington's Law - Washington has No Determinately  
               Committed Dangerous, Mentally Disordered Offenders

          Because Washington has had an SVP law longer than any other  
          state, we can perhaps learn from the Washington experience.   




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          Further, much of the California law was drawn from the  
          Washington law and adapted to practices in this state.  For  
          example, Washington unlike California, does not have a mentally  
          disordered offender law.   Mentally disordered prison inmates  
          who may be violently dangerous are subject to closer monitoring  
          in the community than other parolees.  However, parolees who may  
          be in need of inpatient mental health treatment are not  
          committed to a state program, while such parolees in California  
          are committed to a state program while on parole.   Dangerous  
          mentally disordered California parolees can be held in civil  
          confinement in one-year increments after parole.  In Washington,  
          dangerous parolees who need inpatient care are referred to  
          county authorities for standard civil commitment.  The  
          equivalent program in California is the LPS commitment process.   
           Because Washington does not have an MDO program where parolees  
          are committed under determinate terms, Washington does not have  
          the same equal protection concerns (the requirement that  
          similarly situated persons be treated in an equivalent manner  
          under the law) arising from indeterminate SVP commitments.

                 Washington has Time Limits (Extended with Good Cause)  
               for Bringing SVP Cases to Trial

          Washington State, unlike California, requires that an SVP trial  
          be held within 45 days of the finding of probable cause that a  
          person may be an SVP.  The trial can be continued at the request  
          of either side upon a showing of good cause.   There are no time  
          limits on bringing SVP cases to trial in California.

          SHOULD CALIFORNIA, AS DOES WASHINGTON STATE, REQUIRE AN SVP  
          TRIAL TO BE HELD WITHIN A CERTAIN AMOUNT OF TIME AFTER A FINDING  
          OF PROBABLE CAUSE THAT A PERSON IS AN SVP?

                 The Washington Attorney General Handles Virtually All  
               SVP Cases, while Local District Attorneys Handle SVP Cases  
               in California

          In Washington, the Attorney General prosecutes SVP cases in 38  




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          of the 39 counties.  SVP cases can thereby be coordinated and  
          streamlined.   The Washington SVP prosecutors know the experts  
          and issues in this field very well.   Attorneys in the office  
          report that they use discretion in the filing of cases so as to  
          avoid wasting resources.

          In California, each county district attorney handles SVP cases  
          arising from that county.  Different policies and standards can  
          be followed in each county.   Prosecutors and defense attorneys  
          in Los Angeles can develop deep experience and skill in SVP  
          cases, while those in smaller counties may have little  
          experience or skill in these matters.  Because of the  
          constitutional right to a speedy trial in criminal cases,  
          district attorneys are very likely to place a priority on  
          felony trials over SVP cases.  SVP cases are often delayed for  
          years, producing absurd results.  (An SVP defendant facing a  
          recommitment trial for the period from, say, 2004-2006, may not  
          have the case heard until 2007.)

          SHOULD PROSECUTION OF SVP CASES BE HANDLED BY A SINGLE STATE  
          OFFICE (SUCH AS THE ATTORNEY GENERAL), TO DEVELOP AND MAINTAIN  
          COORDINATION, EXPERTISE AND CONSISTENCY IN SVP CASES, AS HAS  
          BEEN THE CASE IN WASHINGTON?

                 Washington Treatment and Conditional Release (Less  
               Restrictive Alternative) Programs - Federal Court  
               Contempt Fines and Resulting Compliance with Federal  
               Orders; State Operated Conditional Release Facilities

          Washington State has conditionally released (released to a "less  
          restrictive alternative" or LRA) 13 people.  These persons have  
          been released to family members or have been placed in special  
          facilities intended to integrate the SVP patient back into  
          society.  The special facilities have been problematic for  
          Washington.  Initially the only LRA facility was on McNeil  
          Island, the home of the SVP inpatient (Special Commitment)  
          center.   Another facility will soon open in Seattle.





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          The federal courts did not find that the statutory terms of the  
          treatment program, including the LRA provisions, violated the  
          Constitution.  The federal courts did find that the program, as  
          implemented, failed to offer adequate treatment.  The program  
          has operated under a federal court injunction for years.   
          Approximately $14 million in contempt of court fines have  
          accrued while the state works to provide adequate treatment,  
          including constructing or opening transitional living facilities  
          in the community.  The state will not have to pay the fines if  
          the court is satisfied with the progress made in improving  
          treatment.  According to the Washington SCC Web site:  "The  
          court also found that the lack of less restrictive alternative  
          housing options was a significant issue and ordered the state to  
          '[make] arrangements?for the community transition of qualified  
          residents, under supervision, when they are ready for a less  
          restrictive alternative.'"

          Arguably, California should be careful to provide a genuine  
          opportunity for SVP patients to obtain meaningful treatment and  
          to be integrated back into the community through conditional  
          release.  Because DMH has had great difficulty finding housing  
          for SVP patients, perhaps California should consider the use of  
          state-run transitional facilities.  Care must be taken in taking  
          these steps, as the federal courts may be less understanding of  
          treatment inadequacies in California after addressing treatment  
          standards issues over the past 12 years in Washington.  

          SHOULD CALIFORNIA OPEN STATE-OPERATED TRANSITIONAL FACILITIES TO  
          HOUSE CONDITIONALLY RELEASED SVP PATIENTS AND HELP INTERGRATE  
          THEM BACK INTO SOCIETY?

                 Qualifying Convictions - No Washington State SVP has  
               been Committed who had a Single Prior Offense

          Numerous bills in recent years, and the proposed Jessica's Law  
          initiative, have proposed that the SVP law be amended to allow  
          commitment of a person who has been convicted of a single prior  
          sex offense.  Washington State allows commitment with only a  




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          single offense.  However, officials with the Washington program  
          and in the Attorney General's SVP prosecution office are not  
          aware of any case in which a person was committed who had only a  
          single prior conviction.  As noted above, Washington prosecutors  
          exercise discretion in bringing SVP trials.  The persons who  
          have been evaluated in Washington as SVPs have generally had  
          long histories of sexual offending.   It may be a waste of  
          scarce resources to change California law so as to allow  
          commitment of persons to the SVP program who have only a single  
          prior conviction.  If such a person has a relatively high risk  
          of sexual offending, as measured by assessment tools, it is  
          suggested that close monitoring in the community be done.

          Similar issues can be raised about proposals to add more  
          juvenile adjudications to the list of qualifying SVP crimes.   
          Experts in the field have concluded that juvenile sex offenders  
          are different from adult sex offenders.  Allowing an adult SVP  
          commitment to be based on juvenile priors would likely produce  
          very few commitments from a large increase in the number of  
          people screened.  It must be noted that sexually dangerous  
          persons who are committed to the Youth Authority can be kept in  
          civil confinement under Section 1800 of the Welfare and  
          Institutions Code now.  Sexually dangerous persons who would  
          otherwise be released from Youth Authority control are  
          committed, similar to SVPs and MDOs, for successive two-year  
          terms.

                 Newly Enacted Alternatives to SVP Commitment in  
               Washington - All Sex Offenders Convicted of Contact  
               Offenses are Indeterminately Sentenced, with Varying  
               Minimum Terms

          According to the Washington Attorney General's office,  
          Washington has recently passed a law requiring indeterminate  
          prison terms for defendants convicted of all contact sex  
          offenses.  The minimum term in prison is determined from a grid,  
          with one axis being the seriousness of the offense and the other  
          being the defendant's record.  Sex offenders are offered  




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          treatment in prison.  This change in law will force Washington  
          to substantially expand its parole board system.  A similar  
          change in California could be very problematic, as parole  
          hearings are routinely delayed for months or years in  
          California.  It appears that the California courts may soon  
          intervene to force more expedited handling of parole hearings.

          SHOULD CALIFORNIA CONSIDER MAKING ALL SEX CRIMES IN CALIFORNIA  
          SUBJECT TO INDETERMINATE TERMS?

          The indeterminate commitment provisions in this bill are drawn  
          from the Washington law.  Unlike some other proposals made in  
          California for indeterminate commitments, the Washington law  
          appears to comply with constitutional due process requirements  
          by giving SVP patients a reasonably full, annual opportunity for  
          court review of the commitment.   The due process issue is  
          discussed below. 

          4.  Civil Commitment Schemes Based on Dangerousness and Mental  
            Disorders - Including SVP Laws - Must Provide Due Process,  
            Including Reasonable Access to the Courts and Court Review of  
            Status  

          In 2005, the California Supreme Court considered the civil  
          commitment scheme (Welf. & Inst. Code  1800 et seq.) for  
          mentally disordered and dangerous persons who would otherwise be  
          released from Youth Authority parole.  In this case, In re  
          Howard N. (2005) 35 Cal.4th 117, the Court discussed the need  
          for due process in civil commitment schemes generally.   
          Commitment under Section 1800 is similar in many respects to  
          commitment under the SVP law.  Howard N. includes important  
          discussions about the SVP Act.  The court stated:

               The [United States Supreme] court has repeatedly  
               recognized that civil commitment for any purpose  
               constitutes a significant deprivation of liberty that  
               requires due process protectionNevertheless, [s]tates  
               have in certain narrow circumstances provided for the  




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               forcible civil detainment of people who are unable to  
               control their behavior andpose a danger to [others]."  
                The high court has "consistently upheld such  
               involuntary commitmentprovided the confinement takes  
               place pursuant to proper procedures and evidentiary  
               standards."


               .[T]he high court has"sustained civil commitment  
               statutes when they have coupled proof of dangerousness  
               with the proof of some additional factor, such as a  
               'mental illness' or'abnormality.  [Citations.]   
               Theserequirements serve to limit involuntary civil  
               confinement to those who suffer from a volitional  
               control."

               We employed a similar approachin Hofferber.  In that  
               case, we concluded that "the state may confine  
               incompetent criminal defendants, on grounds that they  
               remain violently dangerous  We observed, however,  
               that the relevant statutes did "not expressly require  
               a showing of continuing dangerousness," but appeared  
               "to permit indefinite maintenance of  
               [Lanterman-Petris-Short Act] conservatorships solely  
               because the incompetence continues and the  violent  
               felony charges have not been dismissed."  Therefore,  
               in order to preserve the constitutionality of the  
               statutory scheme, we construed it to require current  
               dangerousness. .  (Id, at pp. 127-129, 134-135;  
               citations omitted; bold type added, italics in  
               original.)

          The court in Howard emphasized that the state must  
          demonstrate the current dangerousness of a civilly  
          committed person.  That requirement is met in the many  
          California commitment statutes by recommitment trials or  
          hearings after set period of time.  (Id, at p. 131,  
          133-135.)  It seems clear that continuing dangerousness  




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          must be demonstrated on some regular basis under an  
          indeterminate commitment, even where the law does not  
          require the entire original commitment process to be  
          repeated as though the person had never been committed. 

          The ruling of the court in In re Howard N. can clearly be  
          read as requiring access to the courts and a process for  
          renewing commitments that provide due process.  That is, a  
          scheme where a person is indeterminately committed and  
          under which the person cannot obtain meaningful review the  
          commitment, or where the person cannot challenge continuing  
          commitment through a showing of changed circumstances,  
          would be subject to serious due process attacks.

          The indeterminate scheme in this bill is modeled on the  
          Washington State indeterminate commitment process.  Under  
          that scheme, as under the equivalent terms of this bill, an  
          SVP patient must be evaluated every year.  The patient can  
          file a petition for conditional or unconditional release  
          with or without the support of the state treatment program  
          authorities.  If the state fails to present a prima facie  
          case that the person must be confined because he remains  
          sexually dangerous because of a mental disorder, or if the  
          patient establishes probable cause that those conditions no  
          longer exist, a trial must be held.  At the trial, the  
          state must prove beyond a reasonable doubt that the person  
          must continue to be confined, or the state must prove that  
          the person cannot be safely released in the community under  
          supervised, conditional release.

          Further, because it appears that the state has a continuing  
          responsibility to justify commitment, unless the person  
          waives the right to an annual non-appearance show-cause  
          hearing the court shall review the issue of whether a prima  
          facie case exists that continuing confinement is necessary.

          It appears that the so-called Jessica's Law bills and  
          initiative only provide that an SVP patient can obtain  




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          certain judicial review with the approval of the director  
          of DMH. Should that approach be enacted, it would be  
          subject to serious due process attack.  Under the Jessica's  
          Law commitment review scheme, a patient can file a petition  
          without the approval of DMH.  However, it appears that the  
          patient can only seek conditional release without the  
          approval of DMH.  Further, the court can deny the patient's  
          petition without any hearing if the court finds that the  
          petition is frivolous.  It is not clear that the court  
          would have to make any particular finding in denying the  
          petition without a hearing.  

          Legislators should be aware that in prior years, a number  
          of urgency bills were introduced and enacted when courts  
          found errors or problems with the SVP law.  For example,  
          the law originally did not provide for holding inmates who  
          had not been evaluated as possible SVPs by the time they  
          would have been released from prison on parole.  Had the  
          Legislature not acted so as to allow a 45-day hold to  
          complete evaluations, prospective SVPs would have been  
          released on parole and not subject to commitment.  If an  
          indeterminate scheme is enacted that does not provide due  
          process, the entire program could be found  
          unconstitutional.  Under such circumstances, the  
          Legislature may not be able to cure due process errors  
          before release of SVP patients from the program.

          5.  The Elephant in the Room - Equal Protection Issues Arising  
            from Indeterminate SVP Commitments when Similar Commitment  
            Schemes (e.g., Mentally Disordered Offender Law) use  
            Determinate Terms  

          This bill includes a provision that a commitment to the SVP  
          program would be for an indeterminate period of years.  Other  
          states have indeterminate commitment terms for SVP patients.   
          However, Washington State, which indeterminately commits SVP  
          patients, has indeterminate terms for other forensic (initially  
          arising from criminal matters) mental health commitments.   




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          California's other forensic mental health commitments are for  
          set periods of times.  Thus, an indeterminate term for  
          California SVPs would meet a serious challenge based on equal  
          protection of the law, as SVPs would not be treated similarly  
          under the law to similarly situated persons like, for example,  
          Mentally Disordered Offenders.

          California appellate courts have held that persons involuntarily  
          committed under the SVP law are similarly situated to persons  
          involuntarily committed as Mentally Disordered Offenders and  
          "other persons involuntarily committed."  (People v. Buffington  
          (1999) 74 Cal.App.4th 1149, 1156.)

          A recent example of this analysis involves the issue of  
          involuntary administration of antipsychotic medication.  The  
          court in In re Calhoun (2003) ) 121 Cal.App.4th 1315,  
          1353-1354 agreed that SVP defendants and patients are  
          similarly situated to Mentally Disordered Offenders (MDO), who  
          are also committed for psychiatric treatment when they would  
          otherwise be released from prison on parole.  The court in  
          Calhoun noted that involuntary civil commitment affects or  
          limits the fundamental interest of liberty.  In particular,  
          the court in Calhoun held that SVP patients, just as MDO  
          patients, have the right to refuse involuntary administration  
          of antipsychotic medication.

          The court in Calhoun explained that where similarly situated  
          persons are treated differently in regard to a fundamental  
          interest, the state action will be reviewed with strict  
          scrutiny:

              If a classification scheme is subject to strict  
              scrutiny because it affects a fundamental interest,  
              the presumption of constitutionality that would  
              otherwise pertain falls away, the burden shifts, and  
              the state must both establish a compelling interest  
              that justifies the law and also demonstrate that the  
              distinctions drawn by the law are necessary to  




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              further that state interest.  [Citations.]

              Respondent has failed to demonstrate a compelling  
              state interest that justifies the distinction between  
              MDOs and SVPs concerning the right to refuse  
              antipsychotic medication.  As discussed above, the  
              distinction cannot be justified merely because,  
              unlike an MDO, an SVP's mental disorder must make it  
              likely that he "will engage in sexually violent  
              [predatory] criminal behavior."  [Citations.]  (In re  
              Calhoun, supra, 121 Cal.App.4th at pp. 1353-1354.)

          MDO patients are generally committed for a period of one  
          year.  A person found not guilty by reason of insanity  
          (NGI) is committed for treatment for a period no longer  
          than the maximum time he or she could be sentenced for the  
          underlying crime.  If the NGI defendant remains a danger to  
          others because of a mental disorder at the end of the  
          initial commitment, he or she can be committed for an  
          additional period of two years.  This bill would require a  
          substantially longer period of commitment for SVP patients  
          than similarly situated civilly committed "forensic"  
          (criminal justice) mental patients.

          6.  Should the Legislature Make Mentally Disordered Offender  
            Commitments and Other Forensic Civil Commitments  
            Indeterminate so as to Avoid or Minimize Equal Protection  
            Problems  

          The previous comment discusses equal protection issues that  
          will arise if SVP patients are committed to indeterminate  
          terms while other forensic patients are committed to  
          determinate terms.  A "forensic commitment" is one that  
          involves a person whose mental disorder or illness is  
          linked to criminal behavior.  For example, a mentally  
          disordered offender was convicted of a violent crime which  
          was caused or exacerbated by the mental disorder and who  
          remains dangerous without treatment.  As noted above,  




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          California courts have found that MDOs and SVPs are  
          similarly situated and must be treated equally under the  
          law for certain purposes.

          It cannot be predicted whether or not the California or  
          United States Supreme Court would rule that equal  
          protection bars different forms of commitment  
          (indeterminate vs. determinate) for SVPs than MDOs and  
          others subject to forensic civil commitments.  Equal  
          protection litigation on this issue will be very complex,  
          protracted and expensive.

          In such litigation, the state is most likely to argue that  
          the treatment for SVPs and MDOs and others subject to  
          forensic civil commitment is necessarily very different.   
          In particular, MDO patients often suffer from mental  
          illnesses such as schizophrenia and paranoid-schizophrenia.  
           These illnesses may be managed or controlled through the  
          use of antipsychotic medication.  Properly medicated MDO  
          patients may keep their maladies in remission.  SVPs are  
          often diagnosed with mental disorders that cannot be  
          managed or controlled through medication.  Such an argument  
          may be undercut by the fact that a person convicted of a  
          violent sex offense can be committed as an MDO.  Similar  
          arguments can be made based on the civil commitments under  
          Welfare and Institutions Code Section 1800, for dangerous  
          and mentally disordered persons who would otherwise be  
          released from Youth Authority control.  Such persons are  
          held for two-year commitments, just as are SVPs under  
          existing law.  Section 1800 commitments often involve  
          persons who have committed sexual offenses.

          Chaos could result if the courts hold that an indeterminate  
          commitment for SVPs alone violates equal protection.  The  
          courts could order the release of all indeterminately  
          committed SVPs.  The courts could order such release, but  
          grant the Legislature some time to cure the constitutional  
          infirmity.




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          Should the courts invalidate the indeterminate commitment  
          process in this bill, none of the outcomes would be  
          welcome.  One could argue that the Legislature should move  
          to make the similar commitment schemes for forensic civil  
          commitments consistent.

          IF THE INDETERMINATE COMMITMENT SCHEME FOR SVP PATIENTS IS  
          ENACTED, SHOULD THE OTHER FORENSIC COMMITMENT SCHEMES BE  
          MADE INDETERMINATE, THEREBY AVOIDING THE CHAOS THAT COULD  
          ENSUE IF INDETERMINATE SVP COMMITMENTS ARE FOUND TO VIOLATE  
          EQUAL PROTECTION?




          Equal protection concerns beg the question of whether the  
          Legislature should consider revising the other forensic  
          civil commitment provisions.  If the indeterminate SVP  
          commitment provision in this bill is enacted, the SVP  
          program would be the only forensic civil commitment program  
          in California under which persons are indeterminately  
          committed.

          7.  SVP Parole Issues; Tolling  

          This bill sets out a comprehensive parole tolling provision for  
          any person subject to evaluation and commitment as an SVP.   
          Under this bill parole is continuously tolled through the  
          initial evaluation process, the probable cause hearing and the  
          period of commitment to DMH for treatment.  The only time that  
          parole runs for a person who is evaluated or committed as an SVP  
          is the time that the person is under supervised conditional  
          release in the community.

          The purpose of the parole tolling provisions in the bill is to  
          insure that sex offenders will not be released into the  
          community having avoided parole supervision.  Under existing  




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          law, a person subject to evaluation and commitment as an SVP  
          will likely not be under parole supervision when he is released  
          into the community.  Recent media reports and prior analyses  
          published by this Committee have noted that dozens of persons  
          have been released without parole supervision after they  
          prevailed in an SVP trial, were released after the state dropped  
          the case, or were not found to be SVPs by expert evaluators.

          The Jessica's Law initiative and bills - AB 231 (Runner) and SB  
          588 (Runner) - appear to only toll parole while a person is  
          actually in the SVP program.  Such a tolling provision would not  
          affect the cases that have drawn the greatest media scrutiny -  
          sex offenders who were evaluated as SVPs but were not committed  
          to the SVP program.  Because SVP proceedings following a finding  
          of probable cause typically take many years, persons who are not  
          committed through the process generally are not on parole at the  
          conclusion of court proceedings.

          Even if a person was committed to the program, their parole  
          period has generally run during the court process. Tolling  
          parole during the treatment program, as would occur under the  
          Jessica's Law provisions, would accomplish little or nothing if  
          the period of parole has run prior to commitment.  Where SVPs  
          are released from the program unconditionally, they generally  
          are subject to no supervision or restrictions beyond sex  
          offender registration.

          In summary, this bill would ensure that sex offenders who are  
          either evaluated or committed as SVPs will be monitored and  
          supervised on parole in the community.

          It must be noted, however, that tolling parole for SVPs, while  
          not tolling parole for mentally disordered offenders and other  
          offenders committed because of mental disorders, likely will be  
          strongly challenged on equal protection grounds.  Further,  
          because of the ban on "ex-post facto" punishment, tolling parole  
          will likely only apply to defendants if the crime for which they  
          are on parole was committed after the effective date of this  




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          bill.  These constitutional issues are discussed below.

          8.  Data on SVP Program (through December 2005) - Only 8% of  
            Inmates with Qualifying Prior Commitments are Committed to  
            the SVP Program  

          The following chart summarizes the data concerning inmates who  
          have passed through the SVP screening, probable cause and  
          commitment process from the inception of the program through  
          December 2005:

          
           ----------------------------------------------------------------- 
          |Total screened by CDCR (with    |6,368                           |
          |qualifying prior convictions)   |                                |
          |--------------------------------+--------------------------------|
          |Eliminated after DMH individual |2,910                           |
          |record review                   |                                |
          |--------------------------------+--------------------------------|
          |Clinical evaluation that inmate |2,069                           |
          |is not SVP                      |                                |
          |--------------------------------+--------------------------------|
          |Clinical evaluation that inmate |1,307                           |
          |may be SVP                      |                                |
          |--------------------------------+--------------------------------|
          |Cases rejected by DA            |   184                          |
          |--------------------------------+--------------------------------|
          |Petition for commitment filed   | 1,073                          |
          |by DA                           |                                |
          |--------------------------------+--------------------------------|
          |Judge rejects (no probable      |   158                          |
          |cause inmate is SVP)            |                                |
          |--------------------------------+--------------------------------|
          |Judge finds probable cause      |   846                          |
          |person is SVP                   |                                |
          |--------------------------------+--------------------------------|
          |Defendant won trial             |   132                          |
          |--------------------------------+--------------------------------|




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          |Trials pending                  |   174                          |
          |--------------------------------+--------------------------------|
          |Actually committed as SVPs      |                                |
          |                                |539                             |
           ----------------------------------------------------------------- 
          
          Even under current standards, expert evaluators have only  
          found about 1/3 of inmates with qualifying prior  
          convictions have mental disorders that make it likely they  
          will engage in future predatory sex acts.  Through the  
          process of petitions, probable cause hearings and trials  
          only about 8% of inmates with prior qualifying convictions  
          are actually committed to the SVP program.  If the pool of  
          inmates subject to evaluation is greatly expanded, with  
          substantial attendant expense, very few additional  
          commitments to the SVP program will result.  The percentage  
          of persons committed to the program, as a portion of the  
          total number screened, will likely fall well below the  
          current rate of 8%.

          9.  Widely Accepted Diagnostic Tool for Predicting Recidivism  
            - STATIC-99  

          The "STATIC-99," which this bill proposes to employ as a tool  
          for assessing the recidivism risk of registered sex offenders,  
          is a widely accepted diagnostic tool for predicting recidivism  
          by persons convicted of sex crimes.  The tool was developed in  
          Canada and is used throughout North America and around the  
          world.  The developers of STATIC-99 conduct ongoing research and  
          evaluation of the instrument.  A new version - STATIC-2002 - is  
          being reviewed and refined at this time.  The researchers  
          particularly seek to make the instrument both more accurate in  
          predicting risk and easier to apply in the field.  It is likely  
          that employment insecurity will be emphasized as a predictor of  
          reoffense and that the factor concerning a lack of close  
          relationships will be made easier to document.  This latter  
          change will likely help probation officers and parole agents  
          obtain correct data.




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          Currently in California, STATIC-99 is used by CDCR in  
          determining which high-risk parolees should be monitored with  
          GPS.  The STATIC-99 is an important component of the DMH review  
          of persons who face possible commitment as sexually violent  
          predators.  (The governing statute requires DMH to employ and  
          update a standardized assessment protocol.)

          The identified risk factors for recidivism identified in the  
          STATIC-99 are, as follows:

           Young offender (18-25).
           Lack of intimate partners (intimate partnerships of 2 years  
            or more lessen recidivism).
           Non-sexual violence.
           Prior convictions for non-sexual violence.
           Prior sex offenses (very important predictor of future  
            criminal behavior).
           Prior criminal sentencing - 4 or more separate sentencings.
           Convictions for "non-contact" sex offense (exhibitionism,  
            obscene telephone calls, obscene material).
           Unrelated victims - perpetrators who were not related to  
            their victims are more likely to re-offend.
           Stranger victims - perpetrators who preyed on strangers are  
            more likely to reoffend.  Male victims - perpetrators who  
            committed crimes against male victims are more likely to  
            reoffend.

          This bill proposes a comprehensive system for ensuring that risk  
          assessments are conducted for all persons convicted of  
          registerable sex offenses, whether granted probation, in prison,  
          on parole, or in the community after terms of parole or  
          probation have ended.  This system also would require that risk  
          assessment levels be posted on Megan's Law to further inform the  
          public as to the particular risk level of individual  
          registrants.

          10.  Research Concerning Sex Crime Recidivism  




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          In February 2004, the Department of Public Safety and Emergency  
          Preparedness of Canada (comparable to U.S. Dept. of Justice and  
          Homeland Security) published an analysis of 95 separate sexual  
          offender recidivism studies "involving more than 31,000 sexual  
          offenders and close to 2000 recidivism predictions."  The study  
          concluded: "most sexual offenders are never reconvicted for  
          another sexual offence. [Sic]"  The study noted a number of  
          factors strongly associated with recidivism and recommended that  
          resources be applied accordingly.



          A 2003 study by the U.S. Bureau of Justice Statistics has been  
          widely cited as authority for assertions that sex offenders have  
          shocking rates of recidivism.  However, the study does not make  
          such claims.  In fact, as measured by the study, sex offenders  
          have lower rates of recidivism than do other offenders.  The  
          study did make the finding that (former prison inmate) sex  
          offenders were more likely to commit a future sex crime than  
          were other former inmates, although the non-sex crime inmates  
          were significantly more likely to commit new crimes overall.   
          This is consistent with one of the basic principles underlying  
          the STATIC-99 that past behavior is an important predictor of  
          future behavior.

          SHOULD CALIFORNIA EMPLOY EVIDENCE-BASED RESEARCH TO FOCUS ITS  
          STRATEGIES FOR CONTAINING SEX OFFENDERS AND PREVENTING FUTURE  
          SEX CRIMES?

          ARE THERE MORE SOPHISTICATED LAW ENFORCEMENT AND CONTAINMENT  
                                TOOLS THAT CALIFORNIA SHOULD BE TAKING ADVANTAGE OF TO FOCUS  
          RESOURCES ON THOSE SEX OFFENDERS MOST LIKELY TO COMMIT SEX  
          CRIMES?

          R. Karl Hanson, the Canadian government researcher who  
          co-developed the STATIC-99 assessment tool, has recently  
          published a meta-analysis of studies of the recidivism of  




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          rapists as compared to child molesters.  The study abstract  
          summarized the findings:

           Study examined the relationship of age to sexual  
            recidivism using data from 10                              
              follow-up studies of adult male sexual offenders  
            (combined sample of 4,673).

           Rapists were younger than child molesters.

           Recidivism risk of rapists steadily decreased with age.

                 Extrafamilial child molesters (molesters of  
               non-relatives) showed relatively little reduction in  
               recidivism until after the age of 50.

                 Recidivism rate of intrafamilial child molesters  
               was generally low (less than 10%), except recidivism  
               rate of 18-24 year old intrafamilial offenders was  
               comparable to that of rapists and extrafamilial child  
               molesters.

          Risk factors for sex offenders updated by Hanson in 2005  
          are as follows:

                  Deviant Sexual Interest
           
             Most sex offenders do not have an enduring preference  
             for illegal sexual activities.   Offenders may act on  
             these less-than-preferred sexual objects/activities  
             (response to underage persons, forced sex) for any  
             number of reasons including peer pressure, impulsivity,  
             and opportunity.  (Study, p. 12, citation omitted.)

                  Low Self-Control
                
             "Low self-control refers to the tendency to respond  
             impulsively to short-term temptation, have little  




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             consideration for future consequences, and engage in  
             high-risk behaviours, such as drinking, driving fast,  
             and sexual promiscuity."  Some researchers describe low  
             self-control as the critical factor in sexual offending.  
              (Study, p. 13.)

                  Opportunity
           
              "Unlike problems with self-control, which should  
              diminish in early adulthood, and deviant sexual drives,  
              which should diminish in early adulthood, and deviant  
              sexual drives, which should diminish in later  
              adulthood, the opportunities for child molesting should  
              decrease in middle adulthood.  Most child molesters  
              exploit a relationship of trust with a known or related  
              victim.    The opportunities for rape, in contrast,  
              should decrease with age.  Most rape victims are young  
              women known to the offender."  (Study, p. 14.)

                  Employment Instability
               
              Dr. Hanson's most recent research concluded that  
              "employment instability significantly predicted sexual  
              recidivism in the current review ?"

              Dr. Hanson has recently published an updated  
              meta-analysis of relevant studies.  Hanson summarized  
              his findings:

                The results confirmed that deviant sexual interests  
                and antisocial orientation as important predictors  
                of sexual recidivism.  Antisocial orientation  
                (e.g., unstable lifestyle, history of rule  
                violation) was a particularly important predictor  
                of violent non-sexual recidivism and general  
                recidivism.  The study also identified a number of  
                new predictor variables, some of which have the  
                potential of being useful targets for intervention  




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                (e.g., sexual preoccupations, conflicts in intimate  
                relationships, emotional identification with  
                children, hostility).  Actuarial risk instruments  
                were consistently more accurate than unguided  
                clinical opinions in predicting sexual, violent  
                non-sexual and general recidivism.  (Hanson and  
                Morton-Bourgon, Predictors of Sexual Recidivism, an  
                Updated Meta-Analysis, 2005.)

                  Summary of Research and Suggestions
               
              Many studies have shown that the recidivism rates for  
              sexual offenders is lower than that of other kinds of  
              criminals, even assuming a lower rate of reporting of  
              sex crimes.  In this study, Hanson noted that  
              recidivism of sex offenders declined with age, "but the  
              overall effect was not large "  Recidivism for rapists  
              declined with age more steeply than with child  
              molesters.  Extrafamilial child molesters show little  
              decline in recidivism until after age 50.  Hanson noted  
              that the research on the age of onset of offending  
              could be affected by the fact that the reporting of  
              intrafamilial child molesting is often delayed.

              Hanson concluded:  "Much of the age decline in sexual  
              offending could also be attributed to simple learning  
              effect.  With experience, man can learn that sex  
              offending is not an effective route to happiness, or  
              more disturbingly, they can learn new and better ways  
              to avoid detection.  Disentangling these various  
              explanations requires, of course, further research."

          SHOULD THE STRATEGIES FOR CONTAINING SEX OFFENDERS BE  
          SHAPED BY EMPIRICAL RESEARCH, INCLUDING CONSIDERATION OF  
          OFFENSE AND REOFFENSE RISKS?

          SHOULD RESEARCH AND EVALUATION BE CONDUCTED AND ENCOURAGED,  
          AND SHOULD OUR POLICIES BE ADJUSTED IN RESPONSE TO SUCH  




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          RESEARCH AND EVALUATION?

          11.  Child Pornography Statutes:  Complications and Confusion  

          California obscenity and child pornography laws are very  
          difficult to read and understand.  Various sections include  
          redundant definitions of "matter" that can constitute obscenity  
          or child pornography.  Other sections contain redundant  
          descriptions of acts that constitute crimes.  Major differences  
          among various crime and penalty provisions depend on the  
          addition or deletion of one word or phrase within  
          multi-subdivision sections and among the various sections.

          Some penalty provisions are arguably inconsistent.  For example,  
          a person convicted of simple possession of child pornography  
          receives the same punishment as a person who distributes or  
          exchanges such material with other adults, although a person who  
          distributes or exchanges material would seem to be the more  
          egregious offender.  The punishment for specified forms of  
          commercially motivated forms of distributing child pornography  
          can only be determined by a very confusing application of cross  
          references in Section 311.2 and 311.9.

          This bill eliminates many of the redundancies in the obscenity  
          and child pornography provisions.  Arguably, one who reads the  
          amended provisions will have much less difficulty applying or  
          deciphering the law than doing so as to the current statutes.

          As described in detail above, this bill also would impose a  
          structure of graduated penalties, with the greatest penalties  
          imposed for possession of explicit sexual conduct depicting  
          minors under the age of 16, as well as for material possessed  
          with the intent to distribute.  The following chart depicts some  
          of these new penalties:

           ----------------------------------------------------------------- 
          |         CRIME         |    CURRENT LAW    |      THIS BILL      |
          |-----------------------+-------------------+---------------------|




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          |Simple possession of   |                  |       Under 16,    |
          |child pornography (PC  |     Misdemeanor   |     "explicit"      |
          | 311.11)              |                   |     sexual          |
          |                       |                   |     conduct<10>:    |
          |                       |                   |     felony (16/2/3) |
          |                       |                   |     (new)           |
          |                       |                   |       16 or 17,    |
          |                       |                   |     explicit sexual |
          |                       |                   |     conduct:        |
          |                       |                   |     wobbler (new)   |
          |                       |                   |       16 or 17,    |
          |                       |                   |     sexual conduct, |
          |                       |                   |     but not         |
          |                       |                   |     "explicit"      |
          |                       |                   |     (311.4(d)):     |
          |                       |                   |     misdemeanor     |
          |                       |                   |     (same as        |
          |                       |                   |     current law)    |
          |                       |                   |       Under 16:    |
          |                       |                   |     sexual conduct  |
          |                       |                   |     but not         |
          |                       |                   |     "explicit"      |
          |                       |                   |     (311.4(d)):     |
          |                       |                   |     wobbler         |
          |                       |                   |                     |
          |-----------------------+-------------------+---------------------|
          |Possession with intent |       To person  |Possession with      |
          ---------------------------
          <10>  For purposes of this section, "explicit sexual conduct"  
          means any of the following, whether actual or simulated: sexual  
          intercourse, oral copulation, anal intercourse, anal oral  
          copulation, masturbation on bare skin, bestiality, sexual  
          sadism, sexual masochism, penetration of the vagina or rectum by  
          any object in a lewd or lascivious manner, graphic and explicit  
          display of the genitals or pubic or rectal area of an overtly  
          sexual character, or excretory functions performed in a lewd or  
          lascivious manner, whether or not any of the above conduct is  
          performed alone or between members of the same or opposite sex  
          or between humans and animals.



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          |to distribute or       |     18+:          |intent to distribute |
          |exchange (no           |     misdemeanor   |or exchange to a     |
          |commercial purpose     |        To person |person of any        |
          |required)  (PC        |     under 18:     |age:<11>             |
          |311.2(c))              |     felony        |       Under 16:    |
          |                       |     (16/2/3)      |     "explicit"      |
          |                       |                   |     sexual conduct: |
          |                       |                   |      felony (2/3/4) |
          |                       |                   |     (new)           |
          |                       |                   |       16 or 17,    |
          |                       |                   |     "explicit"      |
          |                       |                   |     sexual conduct: |
          |                       |                   |      felony         |
          |                       |                   |     (16/2/3) (new)  |
          |                       |                   |       16 or 17,    |
          |                       |                   |     sexual conduct  |
          |                       |                   |     but not         |
          |                       |                   |     "explicit"      |
          |                       |                   |     (311.4(d)):     |
          |                       |                   |     wobbler (new)   |
          |                       |                   |       Under 16     |
          |                       |                   |     sexual conduct  |
          |                       |                   |     not "explicit"  |
          |                       |                   |     (311.4(d)):     |
          |                       |                   |     felony (16/2/3) |
          |                       |                   |       3/6/8 felony |
          |                       |                   |     if person is a  |
          |                       |                   |     registered sex  |
          |                       |                   |     offender (new)  |
          |                       |                   |                     |
          |-----------------------+-------------------+---------------------|
          |Employment or use of   |Misdemeanor        |Wobbler              |
          |minor for child        |                   |                     |
          |pornography - assist   |                   |                     |
          |in any act to          |                   |                     |
          |distribute or exchange |                   |                     |

          ---------------------------
          <11>  NOTE:  Penal Code  311.2 subdivisions (c) and (d) should  
          be repealed, and these provisions added to Penal Code  311.11.



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          |- 1st offense (PC     |                   |                     |
          |311.4 (a))             |                   |                     |
          |-----------------------+-------------------+---------------------|
          |Employment or use of   |Felony 16/2/3      |Under 16, explicit   |
          |minor for child        |                   |sexual conduct:      |
          |pornography - posing   |                   |felony (2/3/4)<12>   |
          |or modeling, no        |                   |                     |
          |commercial purpose     |                   |                     |
          |reqd (PC  311.4(c))   |                   |                     |
           ----------------------------------------------------------------- 

          12.  Contacting Minors with Intent to Commit a Sex Crime - Child  
          Luring; Police Stings  

          Any bill that defines a specific crime for luring of children by  
          adults for purposes of sex should be drafted so as to not  
          interfere with the ability of law enforcement to conduct stings  
          to catch men who seek to have sex with minors.  Law enforcement  
          stings - in which law enforcement officers pose as children -  
          are relatively common and have produced many arrests and much  
          publicity.

          This bill defines a crime under which penalties increase based  
          on the defendant's increasingly dangerous or egregious conduct.   
          This crime uses settled and court-tested language from Penal  
          Code Section 647.6 - annoying or molesting (without physical  
          contact) a child - about persons with an abnormal sexual  
          interest in children.  The crime defined is committed where the  
          defendant, with the noted abnormal interest, contacts a child or  
          a person they think is a child with the intent to engage in  
          sexual activity.  The penalties in the crime are higher where  
          the defendant actually goes to an arranged meeting.

          The crime proposed by this bill can be committed where the  
          perpetrator goes to the residence of the victim.  As many  
          ---------------------------
          <12>  NOTE:  The author may wish to amend Penal Code  311.2  
          and 311.4 to provide that prosecution under these sections shall  
          not preclude prosecution for human trafficking.



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          members know, in recent television exposes, the adults who  
          intended to have sexual contact with children came to homes that  
          they - the adults - thought were the residences of the children.

          The Jessica's Law bills (SB 588 and AB 231) and initiative  
          require as an element that the crime involve an actual child,  
          not a law enforcement officer posing as a child.  As such, the  
          new section proposed by these measures could not be used to  
          prosecute those caught in law enforcement stings.

































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          Further, defendants arrested in stings might be able to  
          successfully argue that they must be prosecuted under the new  
          luring crime proposed by SB 588/Jessica's Law rather than for  
          attempted lewd conduct.  A maxim of criminal law holds that a  
          specific law controls over a more general law covering the same  
          conduct.  (1 Witkin & Epstein (3d Ed. 2000) Intro. to Crimes,  
           59-61.)  A defendant who contacted a minor, or who contacted  
          an officer posing as a minor, for purposes of sex, arguably  
          could demand to be prosecuted under the section created by this  
          measure - as they would be much more specific than the general  
          attempt statute.  Prosecutors could thereby lose any benefits  
          of existing case law concerning attempts to commit lewd  
          conduct.

           13.  Sex Crime Sentencing Changes in Jessica's Law Initiative  
              and This Bill (to One Strike, Habitual Sexual Offender, et  
              cetera Laws); Much Ado about Relatively Little - Technical  
              Amendments and Relatively Minor Substantive Changes  

          As recently amended, this bill incorporates a number of the  
          sentencing revisions proposed in SB 588 and the proposed  
          Jessica's Law initiative.  While substantive, these sentencing  
          changes nonetheless are largely technical, and include  
          relatively modest expansions of sex crime definitions and  
          sentences.  Other changes coordinate provisions within and  
          among sex crime sentencing schemes.

          An example of a largely technical change is the addition of sex  
          crimes committed by credible threats to retaliate in the future  
          to life-term sentencing schemes.  That appears to be a  
          relatively substantial change.  However, these sentencing  
          schemes generally now include crimes committed by "duress" or  
          "menace."  Because threats to retaliate in the future arguably  
          constitute duress or menace, threats to retaliate are included  
          implicitly in the current sentencing schemes.  Still, a direct  
          inclusion of threats to retaliate as an aggravating factor,  
          rather than as an example of duress, may be easier to explain to  
          jurors.  That does not mean, however, that the law has been  
          substantially expanded.




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          14.  New Life Term for Particularly Heinous Sexual Contact with a  
          Young Child
           
          This bill defines a new crime, with a prison term of 25years to  
          life, for a person who has sexual intercourse or sodomy with a  
          child under the age of 10.  Under current law, a life term can  
          be imposed for this conduct.  However, a conviction for a crime  
          that would produce such a sentence would require a number of  
          steps.  For example, sexual intercourse with a child under 10  
          could be charged as lewd conduct, a one-strike crime.  Sexual  
          intercourse with a child would very likely cause great bodily  
          injury.  Great bodily injury is an aggravating factor under the  
          one-strike law.  If the jury makes a finding in a one-strike  
          prosecution that the defendant did cause great bodily injury,  
          the defendant would receive a life term.  This bill proposes a  
          narrowly drafted crime that would not involve the elements  
          currently required under current law.

          15.  Megan's Law
           
          This bill proposes to require the Department of Justice to  
          renovate the Megan's Law database.  Currently, the DOJ database  
          is unable to support additional fields of information.  This  
          bill would address this problem, and augment the information  
          contained on Megan's Law to include SVP status and risk  
          assessment information.



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